[ ] Shares
ENERGY INCOME AND GROWTH FUND
Common Shares of Beneficial Interest
UNDERWRITING AGREEMENT
May [ ], 2004
X.X. Xxxxxxx & Sons, Inc.
Advest, Inc.
Xxxxxxxx & Xxxxxxxx LLC
Xxxxxx, Xxxxx Xxxxx Incorporated
Fixed Income Securities X.X.
Xxxxxx Xxxxxxxxxx Xxxxx LLC
KeyBanc Capital Markets, a division of McDonald Investments Inc.
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
Xxxxxx Xxxxxx & Company, Inc.
Xxxxxx/Xxxxxx Incorporated
Xxxxxx Xxxxxxx & Co.
SunTrust Capital Markets, Inc.
Xxxxx Fargo Investments, LLC
Xxxxxxxxxx Securities, Inc.
As Representatives of the Several Underwriters
c/o X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Dear Sir or Madam:
The undersigned, Energy Income and Growth Fund, a Massachusetts
business trust (the "Fund"), First Trust Advisors L.P., an Illinois limited
partnership (the "Adviser"), and Fiduciary Asset Management, LLC, a Missouri
limited liability company (the "Sub-Adviser") address you as Underwriters and as
the Representatives (the "Representatives") of each of the other persons, firms
Page 1
and corporations, if any, listed in Schedule I hereto (herein collectively
called "Underwriters"). The Fund proposes to issue and sell an aggregate of [ ]
shares of its common shares of beneficial interest, $0.01 par value per share
(the "Firm Shares"), to the several Underwriters. The Fund also proposes to
sell, upon the terms and conditions contained in Section 2 hereof, up to [ ]
additional common shares (the "Additional Shares," which together with the Firm
Shares are hereinafter collectively referred to as the "Shares").
The Fund, the Adviser and the Sub-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 Shares by the
Underwriters.
The Fund has entered into an investment management agreement with the
Adviser dated June 24, 2004 (the "Advisory Agreement"), a Custodian Services
Agreement with PFPC Trust Company ("Custodian") dated May 25, 2004 (the
"Custodian Contract"), a Transfer Agency Agreement with PFPC Inc. dated May 25,
2004 (the "Transfer Agency Agreement"), and a Subscription Agreement with the
Adviser dated June 17, 2004 (the "Subscription Agreement"). In addition, the
Fund has adopted a dividend reinvestment plan (the "Dividend Reinvestment
Plan"), pursuant to which holders of Shares shall have their dividends
automatically reinvested in additional common shares of the Fund unless they
elect to receive such dividends in cash. Collectively, the Advisory Agreement,
the Custodian Contract, the Transfer Agency Agreement, the Subscription
Agreement, and the Dividend Reinvestment Plan are herein referred to as the
"Fund Agreements." The Adviser has entered into the Advisory Agreement, a
Sub-Advisory Agreement with the Sub-Adviser dated June 24, 2004, and a Corporate
Finance Services and Consulting Agreement with X.X. Xxxxxxx & Sons, Inc. dated
May [ ], 2004 (the "Corporate Finance Services and Consulting
Agreement")(collectively, the "Adviser Agreements"). This Underwriting Agreement
is herein referred to as the "Agreement."
Page 2
1. Registration Statement and Prospectus. The Fund has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as
amended (the "1933 Act"), the Investment Company Act of 1940, as
amended (the "1940 Act"), and the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Rules and Regulations")
and the 1940 Act (the "1940 Act Rules and Regulations," and together
with the 1933 Act Rules and Regulations, the "Rules and Regulations") a
registration statement on Form N-2 (File No. 333-114131 under the 1933
Act) (the "registration statement"), including a prospectus and
statement of additional information relating to the Shares, and a
notification of registration of the Fund as an investment company under
the 1940 Act on Form N-8A (File No. 811-21549 under the 1940 Act, the
"1940 Act Notification"), and may pursuant to the Rules and Regulations
prepare and file an additional registration statement relating to a
portion of the Shares pursuant to Rule 462(b) of the 1933 Act Rules and
Regulations (a "Rule 462 registration statement"). The term
"Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and
exhibits), as amended at the time it becomes effective under the 1933
Act or, if the registration statement became effective under the 1933
Act prior to the execution of this Agreement, as amended or
supplemented thereto, prior to the execution of this Agreement and
includes any information deemed to be included by Rule 430A under the
1933 Act Rules and Regulations. If it is contemplated, at the time this
Agreement is executed, that a post-effective amendment to the
registration statement will be filed under the 1933 Act and must be
declared effective before the offering of Shares may commence, the term
"Registration Statement" as used in this Agreement means the
registration statement as amended by said post-effective amendment. If
the Fund has filed a Rule 462 registration statement, then the
reference herein to the term "Registration Statement" shall include
such Rule 462 registration statement. The term "Prospectus" as used in
this Agreement means the prospectus and statement of additional
information in the forms included in the Registration Statement or, if
the prospectus and statement of additional information included in the
Registration Statement omit information in reliance on Rule 430A under
the 1933 Act Rules and Regulations and such information is included in
a prospectus and statement of additional information filed with the
Commission pursuant to Rule 497(h) under the 1933 Act Rules and
Regulations, the term "Prospectus" as used in this Agreement means the
prospectus and
Page 3
statement of additional information in the forms included in the
Registration Statement as supplemented by the addition of the
information contained in the prospectus (including the statement of
additional information) filed with the Commission pursuant to Rule
497(h). The term "Prepricing Prospectus" as used in this Agreement
means the prospectus and statement of additional information subject to
completion in the form included in the registration statement at the
time of the initial filing of the registration statement with the
Commission and as such prospectus and statement of additional
information shall have been amended from time to time prior to the date
of the Prospectus, together with any other prospectus (including any
other statement of additional information) relating to the Fund other
than the Prospectus. The terms "Registration Statement," "Prospectus"
and "Prepricing Prospectus" shall also include any financial statements
and other information included or incorporated by reference therein.
The Fund has furnished the Representatives with copies of such
Registration Statement, each amendment to such Registration Statement
filed with the Commission and each Prepricing Prospectus.
2. Agreements to Sell and Purchase. The Fund hereby agrees, subject
to all the terms and conditions set forth herein, to issue and to sell
to each Underwriter and, upon the basis of the representations,
warranties and agreements of the Fund, the Adviser and the Sub-Adviser
herein contained and subject to all of the other terms and conditions
Page 4
set forth herein, each Underwriter agrees, severally and not jointly,
to purchase from the Fund at a purchase price of $19.10 per Share (the
"Price per Share"), the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule I hereto.
The Fund also agrees, subject to all the terms and conditions
set forth herein, to issue and to sell to the Underwriters and, upon
the basis of the representations, warranties and agreements of the
Fund, the Adviser and the Sub-Adviser herein contained and subject to
all the terms and conditions set forth herein, the Underwriters shall
have the right to purchase Additional Shares from the Fund, at the
purchase price per share, pursuant to an option (the "over-allotment
option") which may be exercised at any time and from time to time prior
to 9:00 A.M., New York City time, on the 45th day after the date of the
Prospectus (or if such 45th day shall be a Saturday or a Sunday or a
holiday, on the next business day thereafter when the American Stock
Exchange (the "AMEX") is open for trading). Additional Shares may be
purchased solely for the purpose of covering over-allotments made in
connection with the offering of the Shares. Upon any exercise of the
over-allotment option, upon the basis of the representations,
warranties and agreements of the Fund, the Adviser and the Sub-Adviser
herein contained and subject to all of the other terms and conditions
set forth herein, each Underwriter agrees, severally and not jointly,
to purchase from the Fund the number of Additional Shares (subject to
such adjustments as you may determine to avoid fractional shares) which
bears the same proportion to the number of Additional Shares to be
purchased by the Underwriters as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I (or such number of
Firm Shares increased as set forth in Section 11 hereof) bears to the
aggregate number of Firm Shares.
3. Terms of Public Offering. The Fund and the Adviser have been
advised by you that the Underwriters propose to make a public offering
of their respective portions of the Shares as soon after the
Page 5
Registration Statement and this Agreement have become effective as in
your judgment is advisable and initially to offer the Shares upon the
terms set forth in the Prospectus.
4. Delivery of Shares and Payments Therefor.
(a) Delivery to the Underwriters of and payment to the Fund for the
Firm Shares and compensation of the Underwriters with respect
thereto shall be made at the offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx at
8:00 a.m. central time on May 30, 2004 (the "Closing Date"). The
place of closing for the Firm Shares and the Closing Date may be
varied by agreement between X.X. Xxxxxxx & Sons, Inc., as
managing representative (the "Managing Representative") of the
Representatives, and the Fund.
(b) Delivery to the Underwriters of and payment to the Fund for any
Additional Shares to be purchased by the Underwriters and
compensation of the Underwriters with respect thereto shall be
made at the aforementioned office of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP at such time on such date (an "Option Closing
Date"), which may be the same as the Closing Date, but shall in
no event be earlier than the Closing Date nor earlier than two
nor later than three business days after the giving of the notice
hereinafter referred to, as shall be specified in a written
notice from you on behalf of the Underwriters to the Fund of the
Underwriters' determination to purchase a number, specified in
said notice, of Additional Shares. The place of closing for any
Additional Shares and the Option Closing Date for such Additional
Shares may be varied by agreement between you and the Fund.
Page 6
(c) The Shares shall be registered in such names and in such
denominations as the Underwriters shall request prior to 1:00
P.M., New York City time, (i) with respect to the Firm Shares, on
the second business day preceding the Closing Date, and (ii) with
respect to the Additional Shares, on the day of the giving of the
written notice in respect of such Additional Shares. Certificates
for shares will be made available to you in New York City for
inspection and packaging not later than 9:00 A.M., New York City
time, on the business day next preceding the Closing Date or any
Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and any Additional Shares to be
purchased hereunder shall be delivered to you on the Closing Date
or the Option Closing Date, as the case may be, against payment
of the purchase price therefor in immediately available funds.
5. Agreements of the Fund, the Adviser and the Sub-Adviser. The
Fund, the Adviser, and the Sub-Adviser, jointly and severally, agree
with the several Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective under the 1933 Act
before the offering of the Shares may commence, the Fund will use
its best efforts to cause the Registration Statement or such
post-effective amendment to become effective under the 1933 Act
as soon as possible. If the Registration Statement has become
effective and the Prospectus contained therein omits certain
information at the time of effectiveness pursuant to Rule 430A of
the 1933 Act Rules and Regulations, the Fund will file a
prospectus including such information pursuant to Rule 497(h) of
the 1933 Act Rules and Regulations, as promptly as practicable,
but no later than the second business day following the earlier
of the date of the determination of the offering price of the
Page 7
Shares or the date the Prospectus is first used after the
effective date of the Registration Statement. If the Registration
Statement has become effective and the Prospectus contained
therein does not so omit such information, the Fund will file a
Prospectus or certification pursuant to Rule 497(c) or (j), as
the case may be, of the 1933 Act Rules and Regulations as
promptly as practicable, but no later than the fifth business day
following the date of the later of the effective date of the
Registration Statement or the commencement of the public offering
of the Shares after the effective date of the Registration
Statement. The Fund will advise you promptly and, if requested by
you, will confirm such advice in writing (i) when the
Registration Statement or such post-effective amendment has
become effective, (ii) when the Prospectus has been timely filed
pursuant to Rule 497(c) or Rule 497(h) of the 1933 Act Rules and
Regulations or (iii) when the certification permitted pursuant to
Rule 497(j) of the 1933 Act Rules and Regulations has been timely
filed, whichever is applicable.
(b) The Fund, and (in the case of (iii)(B) below, with respect to
communications received by the Adviser or the Sub-Adviser) the
Adviser or the Sub-Adviser, will advise you promptly and, if
requested by you, will confirm such advice in writing: (i) of any
request made by the Commission for amendment of or a supplement
to the Registration Statement, the Prospectus or any Prepricing
Prospectus (or any amendment or supplement to any of the
foregoing) or for additional information, (ii) of the issuance by
the Commission, the National Association of Securities Dealers,
Inc. (the "NASD"), any state securities commission, any national
securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative
agency or any official of any order suspending the effectiveness
of the Registration Statement, prohibiting or suspending the use
Page 8
of the Prospectus, any Prepricing Prospectus or any sales
material (as hereinafter defined), of any notice pursuant to
Section 8(e) of the 1940 Act of the suspension of qualification
of the Shares for offering or sale in any jurisdiction, or the
initiation or contemplated initiation of any proceeding for any
such purposes, (iii) of receipt by (A) the Fund, any affiliate of
the Fund or any Representatives or attorney of the Fund of any
other material communication from the Commission, or (B) the
Fund, the Adviser, the Sub-Adviser, any affiliate of the Fund,
the Adviser or the Sub-Adviser or any Representatives or attorney
of the Fund, the Adviser or the Sub-Adviser of any other material
communication from the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any
court or any other governmental, regulatory, self-regulatory or
administrative agency or any official relating, in the case of
either clause (A) or (B), to the Fund (if such communication
relating to the Fund is received by such person within three
years after the date of this Agreement), the Registration
Statement, the 1940 Act Notification, the Prospectus, any
Prepricing Prospectus, any sales material (as hereinafter
defined) (or any amendment or supplement to any of the foregoing)
or this Agreement or any of the Fund Agreements and (iv) within
the period of time referred to in paragraph (f) below, of any
material, adverse change in the condition (financial or other),
general affairs, business, prospects, properties, net assets or
results of operations of the Fund or any event which should
reasonably be expected to have a material adverse effect on the
ability of the Adviser to perform its obligations under this
Agreement or any of the Adviser Agreements (other than as a
result of changes in market conditions generally), or of the
happening of any event which makes any statement of a material
fact made in the Registration Statement, the Prospectus, any
Prepricing Prospectus or any sales material (or any amendment or
supplement to any of the foregoing) untrue or which requires the
making of any additions to or changes in the Registration
Statement, the Prospectus, any Prepricing Prospectus or any sales
material (or any amendment or supplement to any of the foregoing)
in order to state a material fact required by the 1933 Act, the
1940 Act or the Rules and Regulations to be stated therein or
necessary in order to make the statements therein (in the case of
a prospectus or any sales material, in light of the circumstances
under which they were made) not misleading or of the necessity to
amend or supplement the Registration Statement, the Prospectus,
Page 9
any Prepricing Prospectus or any sales material (or any amendment
or supplement to any of the foregoing) to comply with the 1933
Act, the 1940 Act, the Rules and Regulations or any other law or
order of any court or regulatory body. If at any time the
Commission shall issue any order suspending the effectiveness of
the Registration Statement, prohibiting or suspending the use of
the Prospectus or any sales material (or any amendment or
supplement to any of the foregoing) or suspending the
qualification of the Shares for offering or sale in any
jurisdiction, the Fund, the Adviser and the Sub-Adviser will use
their best efforts to obtain the withdrawal of such order at the
earliest possible time. If at any time the NASD, any national
securities exchange, any state securities commission, any
arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official shall
issue any order suspending the effectiveness of the Registration
Statement, prohibiting or suspending the use of the Prospectus or
any sales material (or any amendment or supplement to any of the
foregoing) or suspending the qualification of the Shares for
offering or sale in any jurisdiction, the Fund, the Adviser and
the Sub-Adviser will use their respective best efforts to obtain
Page 10
the withdrawal of such order at the earliest possible time.
(c) The Fund will furnish to you, without charge, three signed copies
of the registration statement and the 1940 Act Notification as
originally filed with the Commission and of each amendment
thereto, including financial statements and all exhibits thereto
and will also furnish to you, without charge, such number of
conformed copies of the registration statement as originally
filed and of each amendment thereto, with or without exhibits, as
you may reasonably request.
(d) The Fund will not (i) file any amendment to the registration
statement or the Registration Statement or make any amendment or
supplement to the Prospectus, any Prepricing Prospectus or any
sales material (or any amendment or supplement to any of the
foregoing) of which you shall not previously have been advised or
to which you shall reasonably object within a reasonable time
after being so advised or (ii) so long as, in the opinion of
counsel for the Underwriters, a Prospectus is required to be
delivered in connection with sales by any Underwriter or dealer,
file any information, documents or reports pursuant to the 1933
Act, the 1940 Act or the Securities Exchange Act of 1934, as
amended (the "1934 Act"), without delivering a copy of such
information, documents or reports to you, as Representatives of
the Underwriters, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the Fund
has delivered to you, without charge, in such quantities as you
have reasonably requested, copies of each form of any Prepricing
Prospectus. The Fund consents to the use, in accordance with the
provisions of the 1933 Act and with the securities or Blue Sky
laws of the jurisdictions in which the Shares are offered by the
several Underwriters and by dealers, prior to the date of the
Page 11
Prospectus, of each Prepricing Prospectus so furnished by the
Fund.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time, for such period as in
the opinion of counsel for the Underwriters a prospectus is
required by the 1933 Act to be delivered in connection with sales
of Shares by any Underwriter or dealer, the Fund will
expeditiously deliver to each Underwriter and each dealer,
without charge, as many copies of the Prospectus (and of any
amendment or supplement thereto) as you may reasonably request.
The Fund consents to the use of the Prospectus (and of any
amendments or supplements thereto) in accordance with the
provisions of the 1933 Act and with the securities or Blue Sky
laws of the jurisdictions in which the Shares are offered by the
several Underwriters and by all dealers to whom Shares may be
sold, both in connection with the offering or sale of the Shares
and for such period of time thereafter as the Prospectus is
required by law to be delivered in connection with sales of
Shares by any Underwriter or dealer. If during such period of
time any event shall occur that in the judgment of the Fund or in
the opinion of counsel for the Underwriters is required to be set
forth in the Registration Statement or the Prospectus (as then
amended or supplemented) or should be set forth therein in order
to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not
misleading or if it is necessary to supplement or amend the
Registration Statement or the Prospectus to comply with the 1933
Act, the 1940 Act, the Rules and Regulations or any other law,
rule or regulation, the Fund will forthwith notify you of such
event, prepare and, subject to the provisions of paragraph (d)
above, promptly file with the Commission an appropriate amendment
or supplement thereto and will expeditiously furnish to the
Underwriters and dealers, without charge, such number of copies
Page 12
thereof as they may reasonably request. In the event that the
Registration Statement or the Prospectus is to be amended or
supplemented, the Fund, if requested by you, will promptly issue
a press release announcing or disclosing the matters to be
covered by the proposed amendment or supplement.
(g) The Fund will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification
of the Shares for offering and sale by the several Underwriters
and by dealers under the securities or Blue Sky laws of such
jurisdictions as you may designate and will file such consents to
service of process or other documents necessary or appropriate in
order to effect such registration or qualification.
(h) Each of the Adviser and the Sub-Adviser will make generally
available to the Underwriters its staff for assistance with
roadshow presentations as the Underwriters may reasonably
request.
(i) As soon as practicable, but in no event later than the last day
of the 18th full calendar month following the calendar quarter in
which the effective date of the Registration Statement falls, the
Fund will make generally available to its security holders an
earnings statement, which need not be audited, which earnings
statement shall satisfy the provisions of Section 11(a) of the
1933 Act and Rule 158 of the 1933 Act Rules and Regulations.
(j) The Fund will comply with the undertaking set forth in paragraph
6 of Item 33 of Part C of the Registration Statement.
(k) During the period of three years hereafter, the Fund will furnish
or will have furnished to you (i) as soon as available, a copy of
each report of the Fund mailed to shareholders or filed with the
Page 13
Commission or furnished to the AMEX and (ii) from time to time
such other information concerning the Fund as you may reasonably
request.
(l) If this Agreement shall terminate or be terminated after
execution pursuant to any provisions hereof (otherwise than
pursuant to the second paragraph of Section 11 hereof or by
notice given by you terminating this Agreement pursuant to
Section 12 hereof) or if this Agreement shall be terminated by
the Underwriters because of (i) any failure or refusal on the
part of the Fund, the Adviser or the Sub-Adviser to comply with
any term or fulfill any of the conditions of this Agreement
required to be complied with or fulfilled by them or (ii) the
non-occurrence of any other condition set forth in this Agreement
required to occur in connection with the sale by the Fund of the
Shares, the Fund, the Adviser and the Sub-Adviser, jointly and
severally, agree to reimburse the Representatives for all
out-of-pocket expenses not to exceed the amounts set forth in
Section 13 of this Agreement (including fees and expenses of
counsel for the Underwriters) incurred by you in connection
herewith.
(m) The Fund will direct the investment of the net proceeds of the
offering of the Shares (i) in accordance with the description set
forth in the Prospectus and (ii) in such a manner as to comply
with the investment objectives, policies and restrictions of the
Fund as described in the Prospectus.
(n) The Fund will file the requisite copies of the Prospectus with
the Commission in a timely fashion pursuant to Rule 497(c) or
Rule 497(h) of the 1933 Act Rules and Regulations, whichever is
applicable or, if applicable, will file in a timely fashion the
certification permitted by Rule 497(j) of the 1933 Act Rules and
Regulations and will advise you of the time and manner of such
filing.
Page 14
(o) The Fund will use its best efforts to have the shares listed,
subject to notice of issuance, on the AMEX concurrently with the
effectiveness of the Registration Statement and to comply with
the rules or regulations of such exchange.
(p) Except as provided in this Agreement or pursuant to any dividend
reinvestment plan of the Fund, none of the Fund, the Adviser, the
Sub-Adviser or their respective officers, trustees or directors
will sell, contract to sell or otherwise dispose of any common
stock or any securities convertible into or exercisable or
exchangeable for common stock or grant any options or warrants to
purchase common stock for a period of 180 days after the date of
the Prospectus, without the prior written consent of the
Representatives.
(q) Except as stated in this Agreement and in the Prospectus, none of
the Fund, the Adviser or the Sub-Adviser will take, directly or
indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of
the price of the Shares.
(r) If the Fund becomes eligible to qualify as a "regulated
investment company" for federal income tax purposes and makes
such an election, the Fund will direct the investment of the
proceeds of the offering of the Shares so as to comply with the
requirements of Subchapter M of the Internal Revenue Code of
1986, as amended (the "Code"), to qualify as a regulated
investment company under the Code.
6. Representations and Warranties of the Fund, the Adviser and
the Sub-Adviser. The Fund, the Adviser, and the Sub-Adviser jointly
and severally, represent and warrant to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the registration
statement as originally filed or as part of any amendment or
Page 15
supplement thereto or filed pursuant to Rule 497 of the 1933 Act
Rules and Regulations complied when so filed in all material
respects with the provisions of the 1933 Act, the 1940 Act and
the Rules and Regulations and the Commission has not issued any
order preventing or suspending the use of the Prepricing
Prospectus.
(b) The registration statement in the form in which it became or
becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective, the
Prospectus and any amendment or supplement thereto when filed
with the Commission under Rule 497 of the 1933 Act Rules and
Regulations and the 1940 Act Notification when originally filed
with the Commission and any amendment or supplement thereto when
filed with the Commission complied or will comply in all material
respects with the provisions of the 1933 Act, the 1940 Act and
the Rules and Regulations, and each of the Registration Statement
and the Prospectus (or any supplement or amendment to either of
them) did not or will not at any such times contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading; except
that this representation and warranty does not apply to
statements in or omissions from the Registration Statement and
the Prospectus (and any amendment or supplement to either of
them) made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Fund in writing by
or on behalf of any Underwriter through you expressly for use
therein.
(c) All the outstanding shares of capital stock of the Fund have been
duly authorized and validly issued, are fully paid and (except as
described in the Prospectus under "Certain Provisions in the
Page 16
Declaration of Trust") nonassessable and are free of any
preemptive or similar rights, the Shares have been duly
authorized and, when issued and delivered to the Underwriters
against payment therefor in accordance with the terms hereof,
will be validly issued, fully paid and (except as described in
the Prospectus under "Certain Provisions in the Declaration of
Trust") nonassessable and free of any preemptive or similar
rights and the capital stock of the Fund conforms to the
description thereof in the Registration Statement or the
Prospectus (or any amendment or supplement to either of them).
Except for the Shares and the shares of common stock issued in
accordance with Section 14(a) of the 1940 Act, no other shares of
capital stock are issued or outstanding and the capitalization of
the Fund conforms in all respects to the description thereof in
the Registration Statement and the Prospectus (or any amendment
or supplement to either of them).
(d) The Fund has been duly formed and is validly existing in good
standing as a business trust under the laws of The Commonwealth
of Massachusetts, with full power and authority to own, lease and
operate its properties and to conduct its business as described
in the Registration Statement and the Prospectus (and any
amendment or supplement to either of them) and is duly registered
and qualified to conduct business and is in good standing in each
jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or
qualification, except where the failure so to register or to
qualify, either alone or in the aggregate, does not have or would
not reasonably be expected to have a material adverse effect on
the condition (financial or otherwise), business, properties,
business prospects, net assets or results of operations, whether
or not occurring in the ordinary course of business (a "Material
Adverse Effect") of the Fund. The Fund has no subsidiaries.
Page 17
(e) There are no legal or governmental proceedings pending or, to the
knowledge of the Fund, threatened against the Fund or to which
the Fund or any of its properties is subject, that are required
to be described in the Registration Statement or the Prospectus
(and any amendment or supplement to either of them) but are not
described as required and there are no agreements, contracts,
indentures, leases or other instruments that are required to be
described in the Registration Statement or the Prospectus (or any
amendment or supplement to either of them) or to be filed as an
exhibit to the Registration Statement that are not described or
filed as required by the 1933 Act, the 1940 Act or the Rules and
Regulations.
(f) The Fund is not in violation of its Declaration of Trust
("Declaration of Trust"), by-laws or other organizational
documents or 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 other agency or any body or official having
jurisdiction over the Fund or in breach or default in the
performance of any obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of
indebtedness or in any agreement, indenture, lease or other
instrument to which the Fund is a party or by which it or any of
its properties may be bound, except for such violation or such
breach or default that, either alone or in the aggregate, does
not have or would not reasonably be expected to have a Material
Adverse Effect on the Fund.
(g) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement or any of the Fund
Page 18
Agreements by the Fund, nor the consummation by the Fund of the
transactions contemplated hereby or thereby (i) requires any
consent, approval, authorization or order of or registration or
filing with the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any
court, regulatory, body, administrative agency or other
governmental body, agency or official having jurisdiction over
the Fund (except compliance with the securities or Blue Sky laws
of various jurisdictions which have been or will be effected in
accordance with this Agreement and except for compliance with the
filing requirements of the NASD Division of Corporate Finance) or
conflicts or will conflict with or constitutes or will constitute
a breach of the Declaration of Trust, bylaws, or other
organizational documents of the Fund or (ii) (A) 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 (B) 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 (collectively, a "lien") 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, except for
such conflict, breach, default, violation or lien that, either
alone or in the aggregate, does not have or would not reasonably
be expected to have a Material Adverse Effect on the Fund. As of
the date hereof, the Fund is not subject to any order of any
court or of any arbitrator, governmental authority or
administrative agency.
Page 19
(h) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them), except as otherwise stated
therein, (i) there has been no material, adverse change in the
condition (financial or other), business, properties, net assets
or results of operations of the Fund or business prospects (other
than as a result of a change in the financial markets generally)
of the Fund, whether or not arising in the ordinary course of
business, (ii) there have been no transactions entered into by
the Fund other than those in the ordinary course of its business
as described in the Prospectus (and any amendment or supplement
thereto) and (iii) there has been no dividend or distribution of
any kind declared, paid or made by the Fund on any class of its
common stock.
(i) The accountants, Deloitte & Touche LLP, who have audited the
Statement of Assets and Liabilities included in the Registration
Statement and the Prospectus (and any amendment or supplement to
either of them), are an independent public accounting firm as
required by the 1933 Act, the 1940 Act and the Rules and
Regulations.
(j) The financial statements, together with related schedules and
notes, included or incorporated by reference in the Registration
Statement or the Prospectus (or any amendment or supplement to
either of them) present fairly the financial position of the Fund
on the basis stated in the Registration Statement at the
respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved
except as disclosed therein; and the other financial and
statistical information and data included in the Registration
Statement or the Prospectus (or any amendment or supplement
Page 20
thereto) are accurately derived from such financial statements
and the books and records of the Fund.
(k) The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule
497 under the 1933 Act Rules and Regulations, has taken all
required action under the 1933 Act, the 1940 Act and the Rules
and Regulations to make the public offering and consummate the
sale of the Shares as contemplated by this Agreement.
(l) The execution and delivery of and the performance by the Fund of
its obligations under this Agreement and the Fund Agreements have
been duly and validly authorized by the Fund and this Agreement
and each of the Fund Agreements have been duly executed and
delivered by the Fund and each constitutes the valid and legally
binding agreement of the Fund, enforceable against the Fund in
accordance with its terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state
securities laws and subject to the qualification that the
enforceability of the Fund's obligations hereunder and thereunder
may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors'
rights generally and by general equitable principles.
(m) Except as disclosed in or contemplated by the Registration
Statement or the Prospectus (or any amendment or supplement to
either of them), subsequent to the respective dates as of which
such information is given in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them),
the Fund has not incurred any material liability or obligation,
direct or contingent, or entered into any transaction, not in the
ordinary course of business, and there has not been any change in
the capital stock or any change or any development involving or
Page 21
which should reasonably be expected to involve a Material Adverse
Effect on the Fund or its capitalization, or the incurrence of
any debt by, the Fund.
(n) The Fund has not distributed and, prior to the later to occur of
(i) the Closing Date and (ii) completion of the distribution of
the Shares, will not distribute to the public any offering
material in connection with the offering and sale of the Shares
other than the Registration Statement, the Prepricing Prospectus
included in Pre-Effective Amendment No. 2 to the registration
statement, the Prospectus and the investor sales material (as
hereinafter defined) filed with the NASD.
(o) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are
necessary to own its property and to conduct its business in the
manner described in the Prospectus (and any amendment or
supplement thereto); the Fund has fulfilled and performed all its
material obligations with respect to such permits and no event
has occurred which allows or, after notice or lapse of time,
would allow, revocation or termination thereof or results in any
other material impairment of the rights of the Fund under any
such permit, subject in each case to such qualification as may be
set forth in the Prospectus (and any amendment or supplement
thereto); and, except as described in the Prospectus (and any
amendment or supplement thereto), none of such permits contains
any restriction that is materially burdensome to the Fund.
(p) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with the Board
of Trustees' general or specific authorization and with the
investment policies and restrictions of the Fund and the
applicable requirements of the 1940 Act and the 1940 Act Rules
Page 22
and Regulations and if the Fund is eligible to elect to qualify
as a "regulated investment company" for federal income tax
purposes and makes such an election, the Code, and regulations
thereunder; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles, to calculate net asset value and
fee accruals, to maintain accountability for assets and to
maintain compliance with the books and records requirements under
the 1940 Act and the 1940 Act Rules and Regulations; (iii) access
to assets is permitted only in accordance with the Board of
Trustees' general or specific authorization; and (iv) the
recorded account for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences.
(q) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or
licensee of any patents, patent licenses, trademarks, service
marks or trade names which it does not own, possess or license or
sub-license.
(r) Except as stated in this Agreement and in the Prospectus (and any
amendment or supplement thereto), the Fund has not taken and will
not take, directly or indirectly, any action designed to or which
could cause or result in or which will constitute stabilization
or manipulation of the price of the Shares in violation of
federal securities laws and no such action has been, or will be,
taken by any affiliates of the Fund.
(s) The Fund is duly registered under the 1940 Act and the Rules and
Regulations as a closed-end, non-diversified management
investment company and the 1940 Act Notification has been duly
filed with the Commission and, at the time of filing thereof and
at all times through the date hereof the 1940 Act Notification
conformed in all material respects with all applicable provisions
of the 1940 Act and the Rules and Regulations; no order of
Page 23
suspension or revocation of such registration under the 1940 Act
and the Rules and Regulations has been issued or proceedings
therefor initiated or threatened by the Commission. The
provisions of the Declaration of Trust, and the investment
policies and restrictions described in each of the Registration
Statement and the Prospectus, comply in all material respects
with the requirements of the 1940 Act and the Rules and
Regulations.
(t) All advertising, sales literature or other promotional material
(including "prospecting letters" and "prospectus wrappers"
(collectively, "investor sales material") and "broker kits,"
"road show slides," "road show scripts," "broker post-cards" and
"broker reference cards" (collectively, "broker sales material")
authorized in writing by or prepared by the Fund or the Adviser
for use in connection with the offering and sale of the Shares
(investor sales material and broker sales material are
collectively referred to as "sales material" which term, for
purposes of this Agreement, shall not include information
included in the investor sales material or the broker sales
material that relates to market indices or other market
information and is specifically designated as being prepared by
the Managing Representative) complied and will comply in all
material respects with the applicable requirements of the 1933
Act, the 1933 Act Rules and Regulations and, if required to be
filed with the NASD under the NASD's conduct rules, were so filed
and complied and will comply in all material respects with the
applicable rules and interpretations of the NASD and no such
sales material, when read together with the Prospectus, contained
or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or
Page 24
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(u) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1933 Act,
the 1940 Act, the Rules and Regulations, the Investment Advisers
Act of 1940, as amended (the "Advisers Act"), and the rules and
regulations of the Commission promulgated under the Advisers Act
(the "Advisers Act Rules and Regulations").
(v) No holder of any security of the Fund has any right to require
registration of any Shares, capital stock or any other security
of the Fund because of the filing of the registration statement
or consummation of the transactions contemplated by this
Agreement.
(w) In the event that the Fund, the Adviser or the Sub-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
Fund or 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.
(x) If the Fund becomes eligible to qualify as a "regulated
investment company" for federal income tax purposes and makes
such an election, the Fund, the Adviser and the Sub-Adviser
intend to direct the investment of the proceeds of the offering
of the Shares in such a manner as to comply with the requirements
of Subchapter M of the Code.
(y) The Commission has not issued any order preventing or suspending
the use of any Prepricing Prospectus or the Prospectus.
Page 25
(z) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them), no
trustee of the Fund is an "interested person" (as defined in the
1940 Act) of the Fund or an "affiliated person" (as defined in
the 1940 Act) of any Underwriter listed in Schedule I hereto.
(aa) The Shares have been approved for listing on the AMEX and the
Fund's registration statement on Form 8-A under the 1934 Act has
become effective.
7. Representations and Warranties of the Adviser. The Adviser
represents and warrants to each Underwriter as follows:
(a) The Adviser is a limited partnership duly organized and validly
existing in good standing under the laws of the State of
Illinois, with full power and authority to own, lease and operate
its properties and to conduct its business as described in each
of the Registration Statement and the Prospectus (or any
amendment or supplement to either of them) and is duly registered
and qualified to conduct business and is in good standing in each
jurisdiction or place where the nature of its properties or
conduct of its business requires such registration or
qualification, except where the failure so to register or to
qualify would not have a material, adverse affect on the
condition (financial or other), general affairs, business,
properties, net assets or results of operations of the Adviser or
the Fund.
(b) The Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited
by the Advisers Act, the 1940 Act, the Advisers Act Rules and
Regulations or the 1940 Act Rules and Regulations from acting
under the Advisory Agreement for the Fund as contemplated by the
Registration Statement or the Prospectus (or any amendment or
Page 26
supplement to either of them). There does not exist any
proceeding which could have a Material Adverse Effect on the
registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the
knowledge of the Adviser, threatened against the Adviser that are
required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement to either of them) but
are not described as required or that could result in any
Material Adverse Effect on the Adviser or that may have a
material, adverse effect on the ability of the Adviser to perform
its obligations under this Agreement or any of the Adviser
Agreements.
(d) Neither the execution, delivery or performance of this Agreement
or the Advisory Agreement by the Adviser, nor the consummation by
the Adviser of the transactions contemplated hereby or thereby
(i) requires the Adviser to obtain any consent, approval,
authorization or other order of, or registration or filing with,
the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court,
regulatory body, administrative agency or other governmental
body, agency or official having jurisdiction over the Adviser or
conflicts or will conflict with or constitutes or will constitute
a breach of or a default under, the partnership agreement or
bylaws or other organizational documents of the Adviser or (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
the Adviser or any of its properties may be bound, or violates or
will violate any statute, law, regulation or judgment,
injunction, order or decree applicable to the Adviser or any of
its properties or will result in the creation or imposition of
Page 27
any lien, charge or encumbrance upon any property or assets of
the Adviser pursuant to the terms of any agreement or instrument
to which it is a party or by which it may be bound or to which
any of the property or assets of the Adviser is subject, except
in any case under clause (ii) for such conflict, breach, default,
violation or lien that, either alone or in the aggregate, does
not have or would not reasonably be expected to have a Material
Adverse Effect on the Adviser or on the ability of the Adviser to
perform its obligations under this Agreement or any of the
Adviser Agreements. The Adviser is not subject to any order of
any court or of any arbitrator, regulatory body, administrative
agency or other governmental body, agency or official.
(e) The Adviser has full power and authority to enter into this
Agreement and each of the Adviser Agreements; the execution and
delivery of, and the performance by the Adviser of its
obligations under, this Agreement and each of the Adviser
Agreements have been duly and validly authorized by the Adviser;
and this Agreement and each of the Adviser Agreements have been
duly executed and delivered by the Adviser and constitute the
valid and legally binding agreements of the Adviser, enforceable
against the Adviser in accordance with their terms, except as
rights to indemnity and contribution hereunder may be limited by
federal or state securities laws and subject to the qualification
that the enforceability of the Adviser's obligations hereunder
and thereunder may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by
general equitable principles whether enforcement is considered in
a proceeding in equity or at law.
(f) The Adviser has the financial resources necessary for the
performance of its services and obligations as contemplated in
Page 28
the Registration Statement and the Prospectus (or any amendment
or supplement to either of them) or under this Agreement and each
of the Adviser Agreements.
(g) The description of the Adviser and its business, and the
statements attributable to the Adviser, in the Registration
Statement or the Prospectus (or any amendment or supplement to
either of them) complied and comply in all material respects with
the provisions of the 1933 Act, the 1940 Act, the Advisers Act,
the Rules and Regulations and the Advisers Act Rules and
Regulations and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances under
which they were made) not misleading.
(h) Since the date as of which information is given in the
Registration Statement or the Prospectus (or any amendment or
supplement to either of them), except as otherwise stated
therein, (i) there has been no material adverse change in the
condition (financial or other), business, properties, net assets
or results of operations or business prospects of the Adviser,
whether or not arising from the ordinary course of business, and
(ii) there have been no transactions entered into by the Adviser
which are material to the Adviser other than those in the
ordinary course of its business as described in the Prospectus.
(i) The Adviser has such permits as are necessary to own its property
and to conduct its business in the manner described in the
Prospectus (and any amendment or supplement thereto); and the
Adviser has fulfilled and performed all its material obligations
with respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation
Page 29
or termination thereof or results in any other impairment of the
rights of the Adviser under any such permit.
(j) None of this Agreement nor any of the Adviser Agreements violate
any applicable provisions of the 1940 Act, the 1940 Act Rules and
Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(k) Except as stated in this Agreement, the Registration Statement or
the Prospectus (or in any amendment or supplement to any of the
foregoing), the Adviser has not taken and will not take, directly
or indirectly, any action designed to or which might reasonably
be expected to cause or result in or which will constitute
stabilization or manipulation of the price of the Shares or of
any securities issued by the Fund to facilitate the sale or
resale of the Shares, in each case, in violation of federal
securities laws and the Adviser is not aware of any such action
taken or to be taken by any affiliates of the Adviser.
8. Representations and Warranties of the Sub-Adviser. The
Sub-Adviser represents and warrants to each Underwriter as follows:
(a) The Sub-Adviser is a limited liability company duly organized and
validly existing in good standing under the laws of the State of
Missouri, with full limited liability company power and authority
to own, lease and operate its properties and to conduct its
business as described in each of the Registration Statement and
the Prospectus (or any amendment or supplement to either of them)
and is duly registered and qualified to conduct business and is
in good standing in each jurisdiction or place where the nature
of its properties or conduct of its business requires such
registration or qualification, except where the failure so to
register or to qualify would not have a material, adverse affect
Page 30
on the condition (financial or other), general affairs, business,
properties, net assets or results of operations of the
Sub-Adviser or the Fund.
(b) The Sub-Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited
by the Advisers Act, the 1940 Act, the Advisers Act Rules and
Regulations or the 1940 Act Rules and Regulations from acting
under the Sub-Advisory Agreement for the Fund as contemplated by
the Registration Statement or the Prospectus (or any amendment or
supplement to either of them). There does not exist any
proceeding which could have a Material Adverse Effect on the
registration of the Sub-Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the
knowledge of the Sub-Adviser, threatened against the Sub-Adviser
that are required to be described in the Registration Statement
or the Prospectus (or any amendment or supplement to either of
them) but are not described as required or that could result in
any Material Adverse Effect on the Sub-Adviser or that may have a
material, adverse effect on the ability of the Sub-Adviser to
perform its obligations under this Agreement or the Sub-Advisory
Agreement.
(d) Neither the execution, delivery or performance of this Agreement
or the Sub-Advisory Agreement by the Sub-Adviser, nor the
consummation by the Adviser of the transactions contemplated
hereby or thereby (i) requires the Sub-Adviser to obtain any
consent, approval, authorization or other order of, or
registration or filing with, the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court, regulatory body, administrative agency or
other governmental body, agency or official having jurisdiction
over the Sub-Adviser or conflicts or will conflict with or
Page 31
constitutes or will constitute a breach of or a default under,
the limited liability company agreement or bylaws or other
organizational documents of the Sub-Adviser or (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 Sub-Adviser is a party or by which the
Sub-Adviser or any of its properties may be bound, or violates or
will violate any statute, law, regulation or judgment,
injunction, order or decree applicable to the Sub-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 Sub-Adviser pursuant to the terms of any agreement or
instrument to which it is a party or by which it may be bound or
to which any of the property or assets of the Sub-Adviser is
subject, except in any case under clause (ii) for such conflict,
breach, default, violation or lien that, either alone or in the
aggregate, does not have or would not reasonably be expected to
have a Material Adverse Effect on the Sub-Adviser or on the
ability of the Sub-Adviser to perform its obligations under this
Agreement or the Sub-Advisory Agreement. The Sub-Adviser is not
subject to any order of any court or of any arbitrator,
regulatory body, administrative agency or other governmental
body, agency or official.
(e) The Sub-Adviser has full power and authority to enter into this
Agreement and the Sub-Advisory Agreement; the execution and
delivery of, and the performance by the Sub-Adviser of its
obligations under, this Agreement and the Sub-Advisory Agreement
have been duly and validly authorized by the Adviser; and this
Agreement and the Sub-Advisory Agreement have been duly executed
and delivered by the Sub-Adviser and constitute the valid and
legally binding agreements of the Sub-Adviser, enforceable
against the Sub-Adviser in accordance with their terms, except as
Page 32
rights to indemnity and contribution hereunder may be limited by
federal or state securities laws and subject to the qualification
that the enforceability of the Sub-Adviser's obligations
hereunder and thereunder may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by
general equitable principles whether enforcement is considered in
a proceeding in equity or at law.
(f) The Sub-Adviser has the financial resources necessary for the
performance of its services and obligations as contemplated in
the Registration Statement and the Prospectus (or any amendment
or supplement to either of them) or under this Agreement and the
Sub-Advisory Agreement.
(g) The description of the Sub-Adviser and its business, and the
statements attributable to the Adviser, in the Registration
Statement or the Prospectus (or any amendment or supplement to
either of them) complied and comply in all material respects with
the provisions of the 1933 Act, the 1940 Act, the Advisers Act,
the Rules and Regulations and the Advisers Act Rules and
Regulations and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances under
which they were made) not misleading.
(h) Since the date as of which information is given in the
Registration Statement or the Prospectus (or any amendment or
supplement to either of them), except as otherwise stated
therein, (i) there has been no material adverse change in the
condition (financial or other), business, properties, net assets
or results of operations or business prospects of the
Page 33
Sub-Adviser, whether or not arising from the ordinary course of
business, and (ii) there have been no transactions entered into
by the Sub-Adviser which are material to the Sub-Adviser other
than those in the ordinary course of its business as described in
the Prospectus.
(i) The Sub-Adviser has such permits as are necessary to own its
property and to conduct its business in the manner described in
the Prospectus (and any amendment or supplement thereto); and the
Sub-Adviser has fulfilled and performed all its material
obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other
impairment of the rights of the Adviser under any such permit.
(j) None of this Agreement nor the Sub-Advisory Agreement violates
any applicable provisions of the 1940 Act, the 1940 Act Rules and
Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(k) Except as stated in this Agreement, the Registration Statement or
the Prospectus (or in any amendment or supplement to any of the
foregoing), the Sub-Adviser has not taken and will not take,
directly or indirectly, any action designed to or which might
reasonably be expected to cause or result in or which will
constitute stabilization or manipulation of the price of the
Shares or of any securities issued by the Fund to facilitate the
sale or resale of the Shares, in each case, in violation of
federal securities laws and the Sub-Adviser is not aware of any
such action taken or to be taken by any affiliates of the
Sub-Adviser.
9. Indemnification and Contribution.
(a) The Fund, the Adviser and the Sub-Adviser, jointly and severally,
Page 34
agree to indemnify and hold harmless each of you and each other
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, from and against any and all losses, claims,
damages, liabilities and expenses, joint or several (including
reasonable costs of investigation), arising out of or based upon
any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Prospectus, any
Prepricing Prospectus, any sales material (as defined in Section
6(t) of this Agreement) (or any amendment or supplement to any of
the foregoing) or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in
the case of a prospectus, in light of the circumstances under
which they were made) not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or
are based upon any untrue statement or omission or alleged untrue
statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information
relating to such Underwriters furnished in writing to the Fund by
or on behalf of any Underwriter through you expressly for use in
connection therewith; provided, however, that the foregoing
indemnification contained in this paragraph (a) with respect to
the Prepricing Prospectus contained in Pre-Effective Amendment
No. 2 to the Registration Statement shall not inure to the
benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) on account of any such loss, claim,
damage, liability or expense arising from the sale of the Shares
by such Underwriter to any person if it is shown that a copy of
the Prospectus (which term as used in this proviso shall not
include any statement of additional information) was not
delivered or sent to such person within the time required by the
Page 35
1933 Act and the 1933 Act Rules and Regulations and the untrue
statement or alleged untrue statement or omission or alleged
omission of a material fact contained in such Prepricing
Prospectus was corrected in the Prospectus, provided that the
Fund has delivered the Prospectus to the several Underwriters in
requisite quantity on a timely basis to permit proper delivery or
sending. The foregoing indemnity agreement shall be in addition
to any liability which the Fund, the Adviser or the Sub-Adviser
may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect
of which indemnity may be sought against the Fund, the Adviser,
or the Sub-Adviser such Underwriter or such controlling person
shall promptly notify the Fund, the Adviser, or the Sub-Adviser
and the Fund, the Adviser or the Sub-Adviser shall assume the
defense thereof, including the employment of counsel and the
payment of all fees and expenses. Such Underwriter or any such
controlling person shall have the right to employ separate
counsel in any such action, suit or proceeding and to participate
in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or controlling person
unless (i) the Fund, the Adviser or the Sub-Adviser have agreed
in writing to pay such fees and expenses, (ii) the Fund, the
Adviser or the Sub-Adviser have failed within a reasonable time
to assume the defense and employ counsel or (iii) the named
parties to any such action, suit or proceeding (including any
impleaded parties) include both such Underwriter or such
controlling person and the Fund, the Adviser or the Sub-Adviser
and such Underwriter or such controlling person shall have been
advised by its counsel that representation of such indemnified
party and the Fund, the Adviser or the Sub-Adviser by the same
counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the
Page 36
same counsel has been proposed) due to actual or potential
differing interests between them (in which case the Fund, the
Adviser and the Sub-Adviser shall not have the right to assume
the defense of such action, suit or proceeding on behalf of such
Underwriter or such controlling person). It is understood,
however, that the Fund, the Adviser and the Sub-Adviser shall, in
connection with any one such action, suit or proceeding or
separate but substantially similar or related actions, suits or
proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the
reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel if there is any
action, suit or proceeding in more than one jurisdiction) at any
time for all such Underwriters and controlling persons not having
actual or potential differing interests with you or among
themselves, which firm shall be designated in writing by the
Representatives and that, subject to the requirements of 1940 Act
Release No. 11330, all such fees and expenses shall be reimbursed
promptly as they are incurred. The Fund, the Adviser and the
Sub-Adviser shall not be liable for any settlement of any such
action, suit or proceeding effected without the written consent
of the Fund, the Adviser or the Sub-Adviser, but if settled with
such written consent or if there be a final judgment for the
plaintiff in any such action, suit or proceeding, the Fund, the
Adviser and the Sub-Adviser agree to indemnify and hold harmless
any Underwriter, to the extent provided in the preceding
paragraph and any such controlling person from and against any
loss, liability, damage or expense by reason by such settlement
or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Fund, the Adviser and the Sub-Adviser,
their trustees, directors, partners, members or managers, any
officers of the Fund who sign the Registration Statement and any
Page 37
person who controls the Fund, the Adviser or the Sub-Adviser
within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, to the same extent as the foregoing indemnity from
the Fund, the Adviser and the Sub-Adviser to each Underwriter,
but only with respect to information relating to such Underwriter
furnished in writing by or on behalf of such Underwriter through
you expressly for use in the Registration Statement, the
Prospectus or the Prepricing Prospectus contained in
Pre-Effective Amendment No. 2 to the Registration Statement. If
any action, suit or proceeding shall be brought against the Fund,
the Adviser or the Sub-Adviser, any of their trustees, directors,
partners, members or managers, any such officer or any such
controlling person, based on the Registration Statement, the
Prospectus or any Prepricing Prospectus (or any amendment or
supplement thereto) and in respect of which indemnity may be
sought against any Underwriter pursuant to this paragraph (c),
such Underwriter shall have the rights and duties given to each
of the Fund, the Adviser and the Sub-Adviser by paragraph (b)
above (except that if the Fund, the Adviser or the Sub-Adviser
shall have assumed the defense thereof such Underwriter shall not
be required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of
such counsel shall be at such Underwriter's expense) and the
Fund, the Adviser and the Sub-Adviser, their trustees, directors,
partners, managers or members, any such officer and any such
controlling person shall have the rights and duties given to the
Underwriters by paragraph (b) above. The foregoing indemnity
agreement shall be in addition to any liability which the
Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under paragraphs (a) or (c)
hereof in respect of any losses, claims, damages, liabilities or
Page 38
expenses referred to therein, then an indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of
such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Fund, the Adviser and the Sub-Adviser on the one
hand (treated jointly for this purpose as one person) and the
Underwriters on the other from the offering of the Shares or (ii)
if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Fund, the Adviser and
the Sub-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,
claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received
by the Fund, the Adviser and the Sub-Adviser on the one hand
(treated jointly for this purpose as one person) and the
Underwriters on the other shall be deemed to be in the same
proportion that the total net proceeds from the offering (before
deducting expenses) received by the Fund bear to the total
underwriting discounts and commissions received by the
Underwriters, in each case, as set forth in the table on the
cover page of the Prospectus. The relative fault of the Fund, the
Adviser and the Sub-Adviser on the one hand (treated jointly for
this purpose as one person) and of the Underwriters on the other
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Fund, the Adviser and the Sub-Adviser
on the one hand (treated jointly for this purpose as one person)
Page 39
or by the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Fund, the Adviser, the Sub-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 (even if
the Underwriters were treated as one entity for such purpose) or
by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities and expenses referred to
in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price of the Shares underwritten
by it and distributed to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section
9 are several in proportion to the respective number of Shares
set forth opposite their names in Schedule I (or such number of
Shares increased as set forth in Section 11 hereof) and not
joint.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
Page 40
threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such
indemnified party from all liability from claimants on claims
that are the subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution
under this Section 8 shall, subject to the requirements of
Release No. 11330, 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 each of the Fund, the Adviser and the Sub-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, the Sub-Adviser or their
trustees, directors, partners, managers, members, officers or any
person controlling the Fund, the Adviser or the Sub-Adviser, (ii)
acceptance of any Shares and payment therefor hereunder and (iii)
any termination of this Agreement. A successor to any Underwriter
or to the Fund, the Adviser or the Sub-Adviser or their trustees,
directors, partners, managers, members, officers or any person
controlling the Fund, the Adviser or the Sub-Adviser shall be
entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 9.
(h) The Fund, the Adviser and the Sub-Adviser each acknowledge that
the statements with respect to (1) the public offering price of
the Shares as set forth on the cover page of the Prospectus and
Page 41
(2) as set forth under the caption "Underwriting" in the
Prospectus (i) the names of the Underwriters, (ii) the number of
Firm Shares set forth opposite the name of each Underwriter,
(iii) the amount of the selling concessions and reallowances of
selling concessions set forth in the first sentence of the fourth
paragraph, (iv) the penultimate paragraph and (v) the final
paragraph constitute the only information furnished in writing to
the Fund by the Underwriters expressly for use in such document.
The Underwriters severally confirm that these statements are
correct in all material respects and were so furnished by or on
behalf of the Underwriters severally for use in the Prospectus.
10. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Shares hereunder are
subject to the accuracy of and compliance with the representations,
warranties and agreements of and by each of the Fund, the Adviser and
the Sub-Adviser contained herein on and as of the date on which the
Registration Statement becomes or became effective, the date of the
Prospectus (and of any amendment or supplement thereto) and the Closing
Date and, with respect to any Additional Shares, any Option Closing
Date; to the accuracy and completeness of all statements made by the
Fund, the Adviser, the Sub-Adviser or any of their respective officers
in any certificate delivered to the Representatives or their counsel
pursuant to this Agreement; and to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective before the offering of
the Shares may commence, the Registration Statement or such
post-effective amendment shall have become effective not later
than 5:30 p.m., New York City time, on the date hereof or at such
later date and time as shall be consented to in writing by you
Page 42
and all filings, if any, required by Rules 497 and 430A under the
1933 Act and the 1933 Act Rules and Regulations shall have been
timely made; no stop order suspending the effectiveness of the
Registration Statement or order pursuant to Section 8(e) of the
1940 Act shall have been issued and no proceeding for that
purpose shall have been instituted or, to the knowledge of the
Fund, the Adviser or any Underwriter, threatened by the
Commission and any request of the Commission for additional
information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to your
satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change or any development involving a
prospective change in or affecting the condition (financial or
otherwise), business, properties, business prospects, net assets
or results of operations, whether or not occurring in the
ordinary course of business, of the Fund, the Adviser or the
Sub-Adviser not contemplated by the Prospectus which, in your
opinion, would materially adversely affect the market for the
Shares, or (ii) any event or development relating to or involving
the Fund, the Adviser, the Sub-Adviser or any officer, trustee,
director, manager or member of the Fund, the Adviser or the
Sub-Adviser which makes any statement made in the Prospectus (or
any amendment or supplement thereto) untrue or which, in the
opinion of the Fund and its counsel or the Underwriters and their
counsel, requires the making of any addition to or change in the
Prospectus (or any amendment or supplement thereto) in order to
state a material fact required by the 1933 Act, the 1940 Act or
the Rules and Regulations or any other law to be stated therein
or necessary in order to make the statements therein (in light of
the circumstances under which they were made) not misleading, if
amending or supplementing the Prospectus (or any previous
amendment or supplement thereto) to reflect such event or
Page 43
development would, in your opinion, materially adversely affect
the market for the Shares.
(c) That you shall have received on the Closing Date an opinion of
Xxxxxxx and Xxxxxx LLP, special counsel for the Fund, dated the
Closing Date and addressed to you, as the Representatives of the
several Underwriters, in substantially the form attached hereto
as Exhibit A. In rendering its opinion, Xxxxxxx and Xxxxxx LLP
may rely, as to matters of Massachusetts law, upon the opinion of
Xxxxxxx XxXxxxxxx LLP dated as of the date thereof.
(d) That you shall have received on the Closing Date an opinion of
Xxxxxxx and Xxxxxx LLP, special counsel for the Adviser, dated
the Closing Date and addressed to you, as Representatives of the
several Underwriters, in substantially the form attached hereto
as Exhibit B.
(e) That you shall have received on the Closing Date an opinion of
Xxxxxx & Block LLP, special counsel for the Sub-Adviser, dated
the Closing Date and addressed to you, as Representatives of the
several Underwriters, in substantially the form attached hereto
as Exhibit C.
(f) That you shall have received on the Closing Date an opinion of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, dated the Closing Date
and addressed to you, as the Representatives of the several
Underwriters, with respect to such matters as you may require and
the Fund, the Adviser, the Sub-Adviser and their respective
counsel shall have furnished to such counsel such documents as
they may request for the purpose of enabling them to pass upon
such matters.
(g) That you shall have received letters addressed to you, as the
Representatives of the several Underwriters and dated each of the
date hereof and the Closing Date from Deloitte & Touche LLP,
Page 44
independent certified public accountants, substantially in the
form attached hereto as Exhibit D.
(h) (i) No order suspending the effectiveness of the Registration
Statement or prohibiting or suspending the use of the Prospectus
(or any amendment or supplement to any of the foregoing) or any
Prepricing Prospectus or any sales material shall have been
issued and no proceedings for such purpose or for the purpose of
commencing an enforcement action against the Fund, the Adviser or
the Sub-Adviser or, with respect to the transactions contemplated
by the Prospectus (or any amendment or supplement thereto) and
this Agreement, may be pending before or, to the knowledge of the
Fund, the Adviser, the Sub-Adviser or any Underwriter or in the
reasonable view of counsel to the Underwriters, shall be
threatened or contemplated by the Commission at or prior to the
Closing Date and that any request for additional information on
the part of the Commission (to be included in the Registration
Statement, the Prospectus or otherwise) be complied with to the
satisfaction of the Representatives, (ii) there shall not have
been any change in the capital stock of the Fund nor any increase
in debt of the Fund from that set forth in the Registration
Statement or the Prospectus (or any amendment or supplement to
either of them) and the Fund shall not have sustained any
material liabilities or obligations, direct or contingent, other
than those reflected in or contemplated by the Registration
Statement or the Prospectus (or any amendment or supplement to
either of them), (iii) since the date of the Prospectus there
shall not have been any material, adverse change in the condition
(financial or otherwise), business, properties, business
prospects, net assets or results of operations, whether or not
occurring in the ordinary course of business, of the Fund, the
Adviser or the Sub-Adviser, (iv) none of the Fund, the Adviser or
the Sub-Adviser shall have sustained any material loss or
Page 45
interference with their businesses from any court or from
legislative or other governmental action, order or decree or from
any other occurrence not described in the Registration Statement
or the Prospectus (or any amendment or supplement to either of
them) and (v) all of the representations and warranties of each
of the Fund, the Adviser and the Sub-Adviser contained in this
Agreement shall be true and correct on and as of the date hereof
and as of the Closing Date as if made on and as of the Closing
Date.
(i) That none of the Fund, the Adviser or the Sub-Adviser shall
have failed at performing or complying with, or prior to the
Closing Date to have performed or complied with, any of the
agreements herein contained and required to be performed or
complied with by them at or prior to the Closing Date.
(j) That you shall have received on the Closing Date a certificate,
dated such date, of each of the chief executive officer and chief
financial officer of each of the Fund, the Adviser and the
Sub-Adviser certifying that (i) the signers have carefully
examined the Registration Statement, the Prospectus (and any
amendments or supplements to either of them) and this Agreement,
(ii) the representations and warranties of the Fund (with respect
to the certificates from such Fund officers) the representations
and warranties of the Adviser (with respect to the certificates
from such officers of the Adviser) and the representations and
warranties of the Sub-Adviser (with respect to the certificates
from such officers of the Sub-Adviser) in this Agreement are true
and correct on and as of the date of the certificate as if made
on such date, (iii) since the date of the Prospectus (and any
amendment or supplement thereto), there has not been any
material, adverse change in the condition (financial or
otherwise), business, properties, business prospects, net assets
or results of operations, whether or not occurring in the
Page 46
ordinary course of business, of the Fund (with respect to the
certificates from such Fund officers) or the Adviser (with
respect to the certificates from such officers of the Adviser) or
the Sub-Adviser (with respect to the certificates from such
officers of the Sub-Adviser), (iv) to the knowledge of such
officers after reasonable investigation, no order suspending the
effectiveness of the Registration Statement or prohibiting the
sale of any of the Shares or having a material, adverse effect on
the Fund (with respect to the certificates from such Fund
officers) or the Adviser (with respect to the certificates from
such officers of the Adviser) or the Sub-Adviser (with respect to
the certificates from such officers of the Sub-Adviser) has been
issued and no proceedings for any such purpose are pending before
or threatened by the Commission or any court or other regulatory
body, the NASD, any state securities commission, any national
securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative
agency or any official, (v) each of the Fund (with respect to
certificates from such Fund officers), the Adviser (with respect
to certificates from such officers of the Adviser) and the
Sub-Adviser (with respect to the certificates from such officers
of the Sub-Adviser) has performed and complied with all
agreements that this Agreement requires it to perform by such
Closing Date, (vi) none of the Fund (with respect to the
certificate from such officers of the Fund), the Adviser (with
respect to the certificate from such officers of the Adviser) or
the Sub-Adviser (with respect to the certificate from such
officers of the Sub-Adviser) has sustained any material loss or
interference with its business from any court or from legislative
or other governmental action, order or decree or from any other
occurrence not described in the Registration Statement or the
Prospectus and any amendment or supplement to either of them and
Page 47
(vii) with respect to the certificate from such officers of the
Fund, there has not been any change in the capital stock of the
Fund nor any increase in the debt of the Fund from that set forth
in the Prospectus (or any amendment or supplement thereto) and
the Fund has not sustained any material liabilities or
obligations, direct or contingent, other than those reflected in
the Prospectus (or any amendment or supplement thereto).
(k) That the Fund, the Adviser and the Sub-Adviser shall have
furnished to you such further letters, certificates, documents
and opinions of counsel as you shall reasonably request
(including certificates of officers of the Fund, the Adviser and
the Sub-Adviser).
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they
are satisfactory in form and substance to you and your counsel
acting in good faith.
Any certificate or document signed by any officer of the Fund,
the Adviser or the Sub-Adviser and delivered to you, as the
Representatives of the Underwriters or to Underwriters'
counsel, shall be deemed a representation and warranty by the
Fund, the Adviser or the Sub-Adviser to each Underwriter as to
the statements made therein.
The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to (i) the accuracy of
and compliance with the representations and warranties of the
Fund, the Adviser and the Sub-Adviser contained herein on and
as of the Option Closing Date as though made on any Option
Closing Date, (ii) satisfaction on and as of any Option
Closing Date of the conditions set forth in this Section 10
except that, if any Option Closing Date is other than the
Page 48
Closing Date, the certificates, opinions and letters referred
to in Sections 10 (c), (d), (e), (f), (g) and (k) and this
paragraph shall be dated the Option Closing Date in question
and the opinions called for by Sections 10 (c), (d), (e), (f)
and (g) shall be revised to reflect the sale of Additional
Shares and (iii) the absence of circumstances on or prior to
the Option Closing Date which would permit termination of this
Agreement pursuant to Section 12 hereof if they existed on or
prior to the Closing Date.
11. Effective Date of Agreement. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties
hereto; or (ii) if, at the time this Agreement is executed and
delivered, it is necessary for the Registration Statement or a post-
effective amendment thereto to be declared effective before the
offering of the Shares may commence, when the Registration Statement or
such post-effective amendment has become effective. Until such time as
this Agreement shall have become effective, it may be terminated by the
Fund by notifying you, or by you by notifying the Fund.
If any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they have agreed to purchase hereunder and
the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate number of the Shares, each non-defaulting
Underwriter shall be obligated, severally, in the proportion which the
aggregate number of Shares set forth opposite its name in Schedule I
hereby bears to the aggregate number of Shares set forth opposite the
names of all non-defaulting Underwriters or in such other proportion as
you may specify in accordance with Section 7 of the Master Agreement
Among Underwriters, to purchase Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase.
If any Underwriter or Underwriters shall fail or refuse to purchase
Page 49
Shares and the aggregate number of Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Shares
and arrangements satisfactory to you and the Fund for the purchase of
such Shares by one or more non-defaulting Underwriters or other party
or parties approved by you and the Fund are not made within 36 hours
after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Fund. In any such
case which does not result in termination of this Agreement, either you
or the Fund shall have the right to postpone the Closing Date, but in
no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken
under this paragraph shall not relieve any defaulting Underwriter from
liability in respect to any such default of any such Underwriter under
this Agreement. The term "Underwriter" as used in this Agreement
includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Fund,
purchases Shares which a defaulting Underwriter agreed, but failed or
refused, to purchase.
Any notice under this Section 11 may be made by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
12. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion without liability on the part
of any Underwriter to the Fund or the Adviser by notice to the Fund or
the Adviser if prior to the Closing Date or any Option Closing Date (if
different from the Closing Date and then only as to the Additional
Shares), as the case may be, (i) trading in securities generally on the
New York Stock Exchange, American Stock Exchange, Nasdaq National
Market, Nasdaq SmallCap Market or the Nasdaq Stock Market shall have
been suspended or limited or minimum prices shall have been
established, (ii) additional governmental restrictions not in force on
the date of this Agreement have been imposed upon trading in securities
generally or a general moratorium on commercial banking activities
Page 50
shall have been declared by Federal or any state's authorities or (iii)
any outbreak or material escalation of hostilities or other
international or domestic calamity, crisis or change in political,
financial, economic, legal or regulatory conditions, occurs, the effect
of which is such as to make it, in your judgment, impracticable or
inadvisable to commence or continue the offering of the Shares at the
offering price to the public set forth on the cover page of the
Prospectus or to enforce contracts for the resale of the Shares by the
Underwriters. Notice of such termination may be given to the Fund, the
Adviser or the Sub-Adviser by telegram, telecopy or telephone but shall
be subsequently confirmed by letter.
13. Expenses. The Fund agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance
by the Fund of its obligations hereunder: (a) the preparation, printing
or reproduction, filing (including, without limitation, the filing or
registration fees prescribed by the 1933 Act, the 1934 Act, the 1940
Act and the Rules and Regulations) and distribution of the Registration
Statement (including exhibits thereto), the Prospectus, each Prepricing
Prospectus and the 1940 Act Notification and all amendments or
supplements to any of them, (b) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for
counting and packaging) of such copies of the Registration Statement,
the Prospectus, each Prepricing Prospectus, any sales material (and all
amendments or supplements to any of them) as may be reasonably
requested for use in connection with the offering and sale of the
Shares, (c) the preparation, printing, authentication, issuance and
delivery of certificates (if any) for the Shares, including any stamp
taxes and transfer agent and registrar fees payable in connection with
the original issuance and sale of such Shares, (d) the registrations or
qualifications of the Shares for offer and sale under the securities or
Blue Sky laws of the several states as provided in Section 5(g) hereof
(including the reasonable fees, expenses and disbursements of counsel
Page 51
for the Underwriters relating to the preparation, printing or
reproduction and delivery of the preliminary and supplemental Blue Sky
Memoranda and such registration and qualification), (e) the fees and
expenses of the Fund's independent accountants, counsel for the Fund
and of the transfer agent, (f) the expenses of delivery to the
Underwriters and dealers (including postage, air freight and the cost
of counting and packaging) of copies of the Prospectus, the Prepricing
Prospectus, any sales material and all amendments or supplements to the
Prospectus as may be requested for use in connection with the offering
and sale of the Shares, (g) the printing (or reproduction) and delivery
of this Agreement, any dealer agreements, the preliminary and
supplemental Blue Sky Memoranda and all other company-authorized
agreements or other documents printed (or reproduced) and delivered in
connection with the offering of the Shares, (h) the filing fees and the
fees and expenses of counsel for the Underwriters in connection with
any filings required to be made with the NASD and incurred with respect
to the review of the offering of the Shares and use of the sales
materials by the NASD, which fees and expenses of counsel, together
with the fees, expenses and disbursements of counsel set forth in
paragraph (d) of this Section 13 above, shall not exceed $25,000,
exclusive of NASD and state filing fees, (i) the transportation,
lodging, graphics and other expenses related to the Fund's preparation
for and participation in the roadshow, (j) the listing of the Shares on
the AMEX and (k) an amount not to exceed $25,000 payable on the Closing
Date to the Representatives in partial reimbursement of their expenses
(but not including reimbursement for the cost of one tombstone
advertisement in a newspaper that is one-quarter of a newspaper page or
less in size) in connection with the offering.
The Adviser has agreed to pay (1) all organizational expenses
and (2) offering costs (other than sales load, but including the
partial reimbursement of underwriter expenses described above) of the
Page 52
Fund that exceed $0.04 per common share purchased by the Underwriters
pursuant to this Agreement (the "Offering Cost Limitation"). The Fund's
Sub-Adviser has agreed to reimburse the Fund's Adviser for one-half of
such organizational and offering costs of the Fund that exceed $0.04
per Share. The Fund shall pay to First Trust Portfolios, L.P., an
affiliate of the Adviser, in connection with its distribution
assistance in connection with the sale of the Shares, an amount equal
to the lesser of (i) 0.10% of the aggregate price to the public (as set
forth in the Prospectus) of the Firm Shares and any Additional Shares
that may be sold to the Underwriters pursuant to Section 2 of this
Agreement and (ii) the positive amount by which the Offering Cost
Limitation exceeds the actual offering costs of the Fund or, if the
actual offering costs of the Fund are equal to or greater than the
Offering Cost Limitation, zero.
Notwithstanding the foregoing, in the event that the sale of
the Shares is not consummated pursuant to Section 2 hereof, the Adviser
or the Sub-Adviser will pay the costs and expenses of the Fund set
forth above in this Section 13(a) through (i), and reimbursements of
Underwriter expenses in connection with the offering shall be made in
accordance with Section 5(l) hereof.
14. Miscellaneous. Except as otherwise provided in Sections 5, 11 and
12 hereof, notice given pursuant to any provision of this Agreement
shall be in writing and shall be delivered (a) if to the Fund or the
Adviser, 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxx, Xxxxxxxx 00000,
Attention: X. Xxxxx Xxxxxxx, (b) if to the Sub-Adviser, 0000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X.
Xxxxxxxxx, and (c) if to you, as Representatives of the Underwriters,
at the office of X.X. Xxxxxxx & Sons, Inc., Xxx Xxxxx Xxxxxxxxx Xxxxxx,
Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxx, with a copy to
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxx, Esq.
Page 53
This Agreement has been and is made solely for the benefit of
the several Underwriters, the Fund, the Adviser, the Sub-Adviser their
trustees, directors, partners, officers, managers, members and the
other controlling persons referred to in Section 9 hereof and their
respective successors and assigns, to the extent provided herein and no
other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" nor the term "successors and
assigns" as used in this Agreement shall include a purchaser from any
Underwriter of any of the Shares in his status as such purchaser.
15. Applicable Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
16. Binding Agreement on the Fund. The Fund's Declaration of Trust is on
file with the Secretary of The Commonwealth of Massachusetts. This
Agreement is executed on behalf of the Fund by the Fund's officers as
officers and not individually and the obligations imposed upon the Fund
by this Agreement are not binding upon any of the Fund's shareholders
individually but are binding only upon the assets and property of the
Fund.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in
counterparts, this Agreement shall not become effective unless at least
one counterpart hereof shall have been executed and delivered on behalf
of each party hereto.
Page 54
Please confirm that the foregoing correctly sets forth the agreement
among the Fund, the Adviser, the Sub-Adviser and the several Underwriters.
Very truly yours,
ENERGY INCOME AND GROWTH FUND
By:_______________________
Title:
FIRST TRUST ADVISORS L.P.
By:_______________________
Title:
FIDUCIARY ASSET MANAGEMENT, LLC
By:_______________________
Title:
Page 55
Confirmed as of the date
first above written on
behalf of themselves and
the other several Under-
writers named in Schedule I hereto.
AS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS
X.X. XXXXXXX & SONS, INC.
By: _________________________________
Title:
Page 56
SCHEDULE I
Underwriter Number of Shares
----------- ----------------
X.X. Xxxxxxx & Sons, Inc. [ ]
Total [ ]
Page 57
EXHIBIT A
Form of Xxxxxxx and Xxxxxx LLP Opinion Regarding the Fund
i. The Registration Statement and all post-effective amendments, if any, are
effective under the Act and no stop order with respect thereto has been issued
and no proceeding for that purpose has been instituted or, to the best of our
knowledge, is threatened by the Commission. Any filing of the Prospectus or any
supplements thereto required under Rule 497 under the Act prior to the date
hereof have been made in the manner and within the time required by such rule.
ii. The Fund has been duly organized and is validly existing as a business trust
in good standing under the laws of The Commonwealth of Massachusetts, with full
power to conduct all the activities conducted by it, to own or lease all assets
owned (or to be owned) or leased (or to be leased) by it and to conduct its
business, all as described in the Registration Statement and Prospectus, and the
Fund is duly licensed and qualified to do business and in good standing in each
jurisdiction in which its ownership or leasing of property or its conducting of
business requires such qualification, except where the failure to be so
qualified or be in good standing, either alone or in the aggregate, would not
have a material adverse effect on the Fund, and the Fund owns, possesses or has
obtained and currently maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations, whether foreign or domestic,
necessary to carry on its business as contemplated in the Prospectus, except
where the failure to obtain such licenses, permits, consents, orders, approvals
and other authorizations, either alone or in the aggregate, would not have a
material adverse effect on the Fund. The Fund has no subsidiaries.
iii. The number of authorized, issued and outstanding shares of Common Shares of
the Fund is as set forth in the Registration Statement and the Prospectus under
the caption Description of Shares--Common Shares" and in the statement of
additional information under the caption "Statements of Assets and Liabilities
as of [ ], 2004." The Common Shares of the Fund conform in all material respects
to the description of them in the Prospectus under the caption "Description of
Shares --Common Shares" in the Prospectus. All the outstanding Common Shares
have been duly authorized and are validly issued, fully paid and (except as
described in the Prospectus under the caption "Certain Provisions in the
Declaration of Trust") nonassessable. The Shares to be issued and delivered to
and paid for by the Underwriters in accordance with the Underwriting Agreement
against payment therefor as provided by the Underwriting Agreement have been
duly authorized and when issued and delivered to the Underwriters as so provided
will have been validly issued and will be fully paid and nonassessable (except
as described in the Registration Statement). No person is entitled to any
Page 58
preemptive or other similar rights with respect to the Shares under the
Declaration of Trust or By-Laws of the Fund or Massachusetts law or, to
counsel's knowledge, otherwise.
iv. The Fund is duly registered with the Commission under the Investment Company
Act as a non-diversified, closed-end management investment company and all
action under the Act and the Investment Company Act, as the case may be,
necessary to make the public offering and consummate the sale of the Shares as
provided in the Underwriting Agreement has or will have been taken by the Fund.
v. The Fund has full power to enter into each of the Underwriting Agreement, the
Advisory Agreement, the Custody Agreement, the Transfer Agency Agreement, and
the Subscription Agreement (collectively, the "Fund Agreements"), and to perform
all of the terms and provisions thereof to be carried out by it and (A) each
Fund Agreement has been duly and validly authorized, executed and delivered by
the Fund, (B) each Fund Agreement complies in all material respects with all
applicable provisions of the Investment Company Act and the Advisers Act, as the
case may be, and (C) assuming due authorization, execution and delivery by the
other parties thereto, each Fund Agreement constitutes the legal, valid and
binding obligation of the Fund enforceable against the Fund in accordance with
its terms, (1) subject, as to enforcement, to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and to general equitable
principles (regardless of whether enforcement is sought in a proceeding in
equity or at law) and (2) except as rights to indemnity thereunder may be
limited by federal or state securities laws.
vi. None of (A) the execution and delivery by the Fund of the Fund Agreements,
(B) the issue and sale by the Fund of the Shares as contemplated by the
Underwriting Agreement and (C) the performance by the Fund of its obligations
under the Fund Agreements or consummation by the Fund of the other transactions
contemplated by the Fund Agreements conflicts with or will conflict with, or
Page 59
results or will result in a breach of, the Declaration of Trust or the By-laws
of the Fund or any agreement or instrument to which the Fund is a party or by
which the Fund is bound that is filed as an exhibit to the Registration
Statement, or any law, rule or regulation which in our experience is normally
applicable to transactions of the type contemplated by the Underwriting
Agreement, or order of any court, governmental instrumentality, securities
exchange or association or arbitrator, whether foreign or domestic, specifically
naming the Fund and known to counsel, except that we express no opinion as to
the securities or "blue sky" laws applicable in connection with the purchase and
distribution of the Shares by the Underwriters pursuant to the Underwriting
Agreement.
vii. No consent, approval, authorization or order of any court (to counsel's
knowledge) or governmental agency or body or securities exchange or association,
whether foreign or domestic, is required by the Fund for the consummation by the
Fund of the transactions to be performed by the Fund or the performance by the
Fund of all the terms and provisions to be performed by or on behalf of it in
each case as contemplated in the Fund Agreements, except such as (A) have been
obtained under the federal securities laws and (B) may be required by the
American Stock Exchange or under state securities or "blue sky" laws in
connection with the purchase and distribution of the Shares by the Underwriters
pursuant to the Underwriting Agreement.
viii. The Shares have been approved for listing on the American Stock Exchange,
subject to official notice of issuance, and the Fund's Registration Statement on
Form 8-A under the 1934 Act is effective.
ix. There are no legal or governmental proceeding pending or, to our knowledge,
threatened against the Fund.
x. The section in the Prospectus entitled "Tax Matters" and the section in the
Statement of Additional Information entitled "Tax Matters" is a fair summary of
the principal United States federal income tax rules currently in effect
applicable to the Fund and to the purchase, ownership and disposition of the
Shares.
xi. The Registration Statement (except the financial statements and schedules
including the notes and schedules thereto, and other financial or accounting
data included therein or omitted therefrom, as to which we express no view), at
Page 60
the time it became effective, and the Prospectus (except as aforesaid), as of
the date thereof, complied as to form in all material respects to the
requirements of the Act and the Investment Company Act.
While we have not checked the accuracy and completeness of or otherwise
verified, and are not passing upon and assume no responsibility for the accuracy
or completeness of, the statements contained in the Registration Statement or
the Prospectus, except to the limited extent set forth in paragraph (xi) above,
in the course of our review of the contents of the Registration Statement and
the Prospectus with certain officers and employees of the Fund and the Fund's
independent accountants, no facts have come to our attention that cause us to
believe that the Registration Statement, at the time it became effective (but
after giving effect to any changes incorporated pursuant to Rule 430A under the
Act), contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading (except that we express no such view with respect to the
financial statements, including notes and schedules thereto, or any other
financial or accounting data included therein), or that the Prospectus, as of
the date it was filed with the Commission pursuant to Rule 497 under the Act 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 in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (except that we express no such view with respect to the
financial statements, including notes and schedules thereto, or any other
financial or accounting data included therein).
Page 61
EXHIBIT B
Form of Xxxxxxx and Xxxxxx LLP Opinion Regarding the Adviser
i. The Adviser has been duly formed and is validly existing as a limited
partnership under the laws of its jurisdiction of incorporation with full power
and authority to own or lease all of the assets owned or leased by it and to
conduct its business as described in the Registration Statement and Prospectus
and to enter into and perform its obligations under the Underwriting Agreement,
the Corporate Finance Services and Consulting Agreement, the Advisory Agreement
and the Sub-Advisory Agreement.
ii. The Adviser is duly registered as an investment adviser under the Advisers
Act and is not prohibited by the Advisers Act or the Investment Company Act from
acting as investment adviser for the Fund as contemplated by the Advisory
Agreement, the Registration Statement and the Prospectus.
iii. The Adviser has full power and authority to enter into each of the
Underwriting Agreement, the Advisory Agreement, the Sub-Advisory Agreement and
the Corporate Finance Services and Consulting Agreement (collectively, the
"Adviser Agreements") and to carry out all the terms and provisions thereof to
be carried out by it, and each such agreement has been duly and validly
authorized, executed and delivered by the Adviser; each Adviser Agreement
complies in all material respects with all provisions of the Investment Company
Act and the Advisers Act; and assuming due authorization, execution and delivery
by the other parties thereto, each Adviser Agreement constitutes a legal, valid
and binding obligation of the Adviser, enforceable against the Adviser in
accordance with its terms, (1) subject, as to enforcement, to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and to general equitable principles (regardless of whether enforcement is sought
in a proceeding in equity or at law) and (2) except as rights to indemnity
thereunder may be limited by federal or state securities laws.
iv. Neither (A) the execution and delivery by the Adviser of any Adviser
Agreement nor (B) the consummation by the Adviser of the transactions
contemplated by, or the performance of its obligations under any Adviser
Agreement conflicts or will conflict with, or results or will result in a breach
of, the organizational documents or by-laws of the Adviser or any agreement or
Page 62
instrument to which the Adviser is a party or by which the Adviser is bound, or
any federal or Illinois law, rule or regulation, or order of any court,
governmental instrumentality, securities exchange or association or arbitrator,
whether foreign or domestic, specifically naming the Adviser and known to us,
except in each case for such conflicts or breaches which do not, either alone or
in the aggregate, have a material adverse effect on the Adviser's ability to
perform its obligations under the Adviser Agreements.
v. No consent, approval, authorization or order of any court, governmental
agency or body or securities exchange or association, whether foreign or
domestic, is required for the consummation of the transactions contemplated in,
or the performance by the Adviser of its obligations under, any Adviser
Agreement, except (i) such as have been obtained under the federal securities
laws and (ii) may be required by the American Stock Exchange or under state
securities or "blue sky" laws, in connection with the purchase and distribution
of the Shares by the Underwriters pursuant to the Underwriting Agreement.
vii. To our knowledge, there is no legal or governmental proceeding pending or
threatened against the Adviser that is either (i) required to be described in
the Registration Statement or Prospectus that is not already described or (ii)
which would, under Section 9 of the Investment Company Act, make the Adviser
ineligible to act as the Fund's investment adviser.
We have not checked the accuracy and completeness of or otherwise
verified, and are not passing upon and assume no responsibility for the accuracy
or completeness of, the statements contained in the Registration Statement or
the Prospectus. We have participated in conferences with representatives of the
Adviser at which the contents of the Registration Statements and Prospectus were
discussed. No facts have come to our attention that cause us to believe that the
description of the Adviser and its business, and the statements attributable to
the Adviser, in the Registration Statement, at the time it became effective (but
after giving effect to any changes incorporated pursuant to Rule 430A under the
Act), contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading (except that we express no such view with respect to the
financial statements, including notes and schedules thereto, or any other
financial or accounting data included therein), or that the description of the
Page 63
Adviser and its business, and the statements attributable to the Adviser, in the
Prospectus, as of the date it was filed with the Commission pursuant to Rule 497
under the Act 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 in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except that we express
no such view with respect to the financial statements, including notes and
schedules thereto, or any other financial or accounting data included therein).
Page 64
EXHIBIT C
Form of Opinion Regarding the Sub-Adviser
i. The Sub-Adviser has been duly formed and is validly existing as a limited
liability company under the laws of its jurisdiction of organization with full
power and authority to own or lease all of the assets owned or leased by it and
to conduct its business as described in the Registration Statement and
Prospectus and to enter into and perform its obligations under the Underwriting
Agreement and the Sub-Advisory Agreement.
ii. The Adviser is duly registered as an investment adviser under the Advisers
Act and is not prohibited by the Advisers Act or the Investment Company Act from
acting as investment adviser for the Fund as contemplated by the Sub-Advisory
Agreement, the Registration Statement and the Prospectus.
iii. The Adviser has full power and authority to enter into each of the
Underwriting Agreement and the Sub-Advisory Agreement (collectively, the
"Sub-Adviser Agreements") and to carry out all the terms and provisions thereof
to be carried out by it, and each such agreement has been duly and validly
authorized, executed and delivered by the Sub-Adviser; each Sub-Adviser
Agreement complies in all material respects with all provisions of the
Investment Company Act and the Advisers Act; and assuming due authorization,
execution and delivery by the other parties thereto, each Sub-Adviser Agreement
constitutes a legal, valid and binding obligation of the Sub-Adviser,
enforceable against the Sub-Adviser in accordance with its terms, (1) subject,
as to enforcement, to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and to general equitable principles
(regardless of whether enforcement is sought in a proceeding in equity or at
law) and (2) except as rights to indemnity thereunder may be limited by federal
or state securities laws.
iv. Neither (A) the execution and delivery by the Sub-Adviser of any Sub-Adviser
Agreement nor (B) the consummation by the Sub-Adviser of the transactions
contemplated by, or the performance of its obligations under any Sub-Adviser
Agreement conflicts or will conflict with, or results or will result in a breach
of, the organizational documents or by-laws of the Sub-Adviser or any agreement
or instrument to which the Adviser is a party or by which the Sub-Adviser is
bound, or any federal or Missouri law, rule or regulation, or order of any
Page 65
court, governmental instrumentality, securities exchange or association or
arbitrator, whether foreign or domestic, specifically naming the Sub-Adviser and
known to us, except in each case for such conflicts or breaches which do not,
either alone or in the aggregate, have a material adverse effect on the
Sub-Adviser's ability to perform its obligations under the Sub-Adviser
Agreements.
v. No consent, approval, authorization or order of any court, governmental
agency or body or securities exchange or association, whether foreign or
domestic, is required for the consummation of the transactions contemplated in,
or the performance by the Sub-Adviser of its obligations under, any Adviser
Agreement, except (i) such as have been obtained under the federal securities
laws and (ii) may be required by the American Stock Exchange or under state
securities or "blue sky" laws, in connection with the purchase and distribution
of the Shares by the Underwriters pursuant to the Underwriting Agreement.
vii. To our knowledge, there is no legal or governmental proceeding pending or
threatened against the Sub-Adviser that is either (i) required to be described
in the Registration Statement or Prospectus that is not already described or
(ii) which would, under Section 9 of the Investment Company Act, make the
Sub-Adviser ineligible to act as the Fund's investment adviser.
We have not checked the accuracy and completeness of or otherwise
verified, and are not passing upon and assume no responsibility for the accuracy
or completeness of, the statements contained in the Registration Statement or
the Prospectus. We have participated in conferences with representatives of the
Sub-Adviser at which the contents of the Registration Statements and Prospectus
were discussed. No facts have come to our attention that cause us to believe
that the description of the Sub-Adviser and its business, and the statements
attributable to the Adviser, in the Registration Statement, at the time it
became effective (but after giving effect to any changes incorporated pursuant
to Rule 430A under the Act), contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading (except that we express no such
view with respect to the financial statements, including notes and schedules
Page 66
thereto, or any other financial or accounting data included therein), or that
the description of the Sub-Adviser and its business, and the statements
attributable to the Adviser, in the Prospectus, as of the date it was filed with
the Commission pursuant to Rule 497 under the Act 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 in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading
(except that we express no such view with respect to the financial statements,
including notes and schedules thereto, or any other financial or accounting data
included therein).
Page 67
EXHIBIT D
Form of Deloitte & Touche LLP Comfort Letter
May [ ], 2004
The Board of Trustees of
Energy Income and Growth Fund
0000 Xxxxxxxxxxx Xxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
as Managing Representative of the Underwriters
Ladies and Gentlemen:
We have audited the statement of assets and liabilities of
Energy Income and Growth Fund (the "Fund") as of [ ], 2004 (the "financial
statement") included in Pre-effective Amendment No. [ ] to the Registration
Statement on Form N-2 filed by the Fund under the Securities Act of 1933 (the
"1933 Act") (File No. 333-[ ]) and under the Investment Company Act of 1940 (the
"1940 Act," collectively, the 1933 Act and the 1940 Act, the "Acts") (File No.
811-[ ]); such statement and our report with respect to such statement are
included in that Registration Statement. The Registration Statement, as amended
at the time it became effective on [ ], 2004, is herein referred to as the
"Registration Statement."
In connection with the Registration Statement:
1. We are independent auditors with respect to the Fund within
the meaning of the Acts and the applicable rules and regulations
adopted thereunder by the Securities and Exchange Commission (the
"SEC").
2. In our opinion, the financial statement audited by us and
included in the Registration Statement complies as to form in all
respects with the applicable accounting requirements of the Acts and
the related rules and regulations thereunder adopted by the SEC.
3. We have not audited any financial statements of the Fund as
Page 68
of any date or for any period subsequent to [ ], 2004. Therefore, we
are unable to and do not express any opinion on the financial position,
results of operations, changes in net assets, or the financial
highlights of the Fund as of any date or for any period subsequent to
August [ ], 2004.
4. For purposes of this letter we have read the minutes of all
meetings of the Shareholders, the Board of Trustees and all Committees
of the Board of Trustees of the Fund as set forth in the minute books
at the offices of the Fund, officials of the Fund having advised us
that the minutes of all such meetings through [ ], 2004, were set forth
therein.
5. For purposes of this letter, we have read the information
included in the Registration Statement under the captions listed below
and performed the following procedures. The procedures, which were
applied as indicated with respect to the items presented below
consisted of:
--------------------------- ----------------------------------------------------
Page/Caption Procedures and Findings
--------------------------- ----------------------------------------------------
Page 1, Prospectus We proved the mathematical accuracy of the proceeds
to the Fund per share of $[ ] and in total of $[ ],
assuming a price to public of $[ ] per share, a
sales load of $0.90 per share, and estimated
offering costs of $[ ] per share. We give no comfort
on the assumed amounts utilized in the calculation
described above.
--------------------------- ----------------------------------------------------
Page [ ], Prospectus, We proved the mathematical accuracy of the 1 year,
Summary of 3 years, 5 years, and 10 years total expenses
Fund Expenses incurred of $57, $77, $99, and $162, respectively,
assuming inclusion of a sales load of $45 and
estimated offering expenses of this offering of $2,
and a 5% annual return on an initial investment of
$1,000 in Common Shares and assuming total annual
expenses of 1.0% of net assets. We give no comfort
on the assumed amounts utilized in the calculation
described above.
--------------------------- ----------------------------------------------------
The foregoing procedures do not constitute an audit conducted in accordance with
auditing standards generally accepted in the United States of America. Also,
they would not necessarily reveal matters of significance with respect to the
comments in the following paragraph. Accordingly, we make no representations
Page 69
regarding the sufficiency of the foregoing procedures for your purposes.
6. Fund management has advised us that no financial data as of
any date or for any period subsequent to [ ], 2004, is available;
accordingly, the procedures carried out by us with respect to changes
in financial statement items after [ ], 2004, have, of necessity, been
limited. We have inquired of certain management of the Fund who have
responsibility for financial and accounting matters whether there was
any change as of [ ], 2004 in the capital stock, net assets, or
long-term liabilities of the Fund as compared with amounts shown on the
[ ], 2004 statement of assets and liabilities included in the
Registration Statement. On the basis of these inquiries and our reading
of the minutes as described in 4, nothing came to our attention that
caused us to believe that there was any change in capital stock, net
assets or long-term liabilities, except in all instances for changes,
increases, or decreases that the Registration Statement discloses have
occurred or may occur.
This letter is solely for the information of the addressees and to
assist the underwriters in conducting and documenting their investigation of the
affairs of the Fund in connection with the offering of the securities covered by
the Registration Statement, and is not to be used, circulated, quoted or
otherwise referred to within or without the underwriting group for any other
purpose, including but not limited to the registration, purchase or sale of
securities, nor is it to be filed with or referred to in whole or in part in the
Registration Statement or any other document, except that reference may be made
to it in the underwriting agreement or in any list of closing documents
pertaining to the offering of the securities covered by the Registration
Statement.
Page 70
