EXHIBIT (h)
▇▇▇▇▇ ▇▇▇▇▇ TAX-MANAGED BUY-WRITE INCOME FUND
_____ COMMON SHARES OF BENEFICIAL INTEREST
($ 0.01 PAR VALUE)
UNDERWRITING AGREEMENT
New York, New York
April __, 2005
Citigroup Global Markets Inc.
[Other Underwriters]
As Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned, ▇▇▇▇▇ ▇▇▇▇▇ Tax-Managed Buy-Write Income Fund, an
unincorporated business trust established under the laws of the Commonwealth of
Massachusetts (the "Fund"), ▇▇▇▇▇ ▇▇▇▇▇ Management, an unincorporated business
trust established under the laws of the Commonwealth of Massachusetts (the
"Adviser"), Parametric Portfolio Associates LLC, a Delaware limited liability
company ("Parametric") and Rampart Investment Management Company, Inc., a
Massachusetts corporation ("Rampart," together Parametric, the "Subadvisers" and
together with the Adviser, the "Advisers"), address you as underwriters and as
the representatives (the "Representatives") of each of the several underwriters
named on Schedule I hereto (the "Underwriters"). The Fund proposes to sell to
the Underwriters _____ shares (the "Underwritten Securities") of its common
shares of beneficial interest, par value $0.01 per share (the "Common Shares").
The Fund also proposes to grant to the Underwriters an option to purchase up to
_____ additional Common Shares to cover over-allotments (the "Option
Securities"). The Underwritten Securities and the Option Securities are
hereinafter collectively referred to as the "Securities." Unless otherwise
stated, the term "you" as used herein means Citigroup Global Markets Inc.
individually on its own behalf and on behalf of the other Representatives.
Certain terms used herein are defined in Section 18 hereof.
The Fund and the Advisers wish to confirm as follows their
agreements with you and the other several Underwriters on whose behalf you are
acting in connection with the several purchases of the Securities by the
Underwriters.
The Fund has entered into an Investment Advisory Agreement with the
Adviser dated as of _____, 200_, an Administration Agreement with the Adviser
dated as of ___________, 200_, a Custodian Agreement with Investors Bank & Trust
Company dated as of _____, 200_, and a [Shareholder Transfer Agency and Service
Agreement] with PFPC Inc. dated as of _____, 200_, and such agreements are
herein referred to as the "Management Agreement,"
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the "Administration Agreement," the "Custodian Agreement" and the "Transfer
Agency Agreement," respectively. The Adviser has entered into an investment
sub-advisory agreement with Parametric dated as of _____, 200_, and with Rampart
dated as of _______, 200_ with Rampart, an Additional Compensation Agreement
with UBS Securities LLC dated as of _____, 200_, and a Structuring Fee Agreement
with Citigroup Global Markets Inc. dated as of _____, 200_. Such agreements are
herein respectively referred to as the "Sub-Advisory Agreements," the
"Additional Compensation Agreement" and the "Structuring Fee Agreement."
Collectively, the Management Agreement, the Administration Agreement, the
Custodian Agreement and the Transfer Agency Agreement are herein referred to as
the "Fund Agreements." In addition, the Fund has adopted a dividend reinvestment
plan (the "Dividend Reinvestment Plan") pursuant to which holders of Common
Shares shall have their dividends automatically reinvested in additional Common
Shares of the Fund unless they elect to receive such dividends in cash.
1. Representations and Warranties of the Fund and the Advisers. The
Fund and the Advisers, jointly and severally, represent and warrant to, and
agree with, each Underwriter as set forth below in this Section 1.
(a) The Fund has prepared and filed with the Commission a
registration statement (file numbers 333-12066 and 811-21676) on Form N-2,
including a related preliminary prospectus (including the statement of
additional information incorporated by reference therein), for
registration under the Act and the 1940 Act of the offering and sale of
the Securities. The Fund may have filed one or more amendments thereto,
including a related preliminary prospectus (including the statement of
additional information incorporated by reference therein), each of which
has previously been furnished to you. The Fund will next file with the
Commission one of the following: either (1) prior to the Effective Date of
such registration statement, a further amendment to such registration
statement (including the form of final prospectus (including the statement
of additional information incorporated by reference therein)) or (2) after
the Effective Date of such registration statement, a final prospectus
(including the statement of additional information incorporated by
reference therein) in accordance with Rules 430A and 497. In the case of
clause (2), the Fund has included in such registration statement, as
amended at the Effective Date, all information (other than Rule 430A
Information) required by the Act and the 1940 Act and the Rules and
Regulations to be included in such registration statement and the
Prospectus. As filed, such amendment and form of final prospectus
(including the statement of additional information incorporated by
reference therein), or such final prospectus (including the statement of
additional information incorporated by reference therein), shall contain
all Rule 430A Information, together with all other such required
information, and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Fund has advised you, prior to the
Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or will,
and when the Prospectus is first filed (if required) in accordance with
Rule 497 and on the Closing Date (as defined herein) and on any date on
which Option Securities are purchased, if such
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date is not the Closing Date (a "settlement date"), the Prospectus (and
any supplements thereto) will, and the 1940 Act Notification when
originally filed with the Commission and any amendment or supplement
thereto when filed with the Commission did or will, comply in all material
respects with the applicable requirements of the Act, the 1940 Act and the
Rules and Regulations and the Registration Statement did not or will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 497, will not, and on the date
of any filing pursuant to Rule 497 and on the Closing Date and any
settlement date, the Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Fund makes no representations or warranties as
to the information contained in or omitted from the Registration
Statement, or the Prospectus (or any supplement thereto), in reliance upon
and in conformity with information furnished in writing to the Fund by or
on behalf of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Prospectus (or any
supplement thereto). The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus.
(c) The Fund has been duly formed and is validly existing as an
unincorporated 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 Prospectus, and
is duly qualified to do business as a foreign trust and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to so qualify would not have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Fund. The Fund has no
subsidiaries.
(d) The Fund's authorized equity capitalization is as set forth in
the Prospectus; the capital stock of the Fund conforms to the description
thereof contained in the Registration Statement and the Prospectus; all
outstanding Common Shares have been duly and validly authorized and issued
and are fully paid and nonassessable (except as described in the
Registration Statement); the Securities have been duly and validly
authorized, and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be fully paid and
nonassessable (except as described in the Registration Statement); the
Securities are duly listed, and admitted and authorized for trading,
subject to official notice of issuance and evidence of satisfactory
distribution, on the New York Stock Exchange (the "NYSE"); the
certificates for the Securities are in valid and sufficient form; the
holders of outstanding Common Shares are not entitled to preemptive or
other rights to subscribe for the Securities; and, except as set forth in
the Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital stock
of or ownership interests in the Fund are outstanding.
(e) The Fund's registration statement on Form 8-A under the Exchange
Act has become effective.
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(f) The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497, has
taken all required action under the Act, the 1940 Act and the Rules and
Regulations to make the public offering and consummate the sale of the
Securities as contemplated by this Agreement.
(g) There are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Registration
Statement or the Prospectus, or to be filed as an exhibit thereto, which
are not described or filed as required by the Act, the 1940 Act or the
Rules and Regulations; and the statements in the Prospectus under the
headings "Prospectus Summary -- Special Risk Considerations -- Tax Risk,"
"Investment Objectives, Policies and Risks -- Risk Considerations -- Tax
Risk," "Distribution -- Federal Income Tax Matters," "Taxes" and
"Description of Capital Structure" fairly summarize the matters therein
described.
(h) The execution and delivery of and the performance by the Fund of
its obligations under this Agreement and the Fund Agreements have been
duly and validly authorized by the Fund and this Agreement and the Fund
Agreements have been duly executed and delivered by the Fund and
constitute the valid and legally binding agreements of the Fund,
enforceable against the Fund in accordance with their terms, except as
rights to indemnity and contribution hereunder may be limited by federal
or state securities laws and subject to the qualification that the
enforceability of the Fund's obligations hereunder and thereunder may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and by general
equitable principles.
(i) The Fund is duly registered under the 1940 Act as a closed-end,
diversified management investment company and the 1940 Act Notification
has been duly filed with the Commission. The Fund has not received any
notice from the Commission pursuant to Section 8(e) of the 1940 Act with
respect to the 1940 Act Notification or the Registration Statement.
(j) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein or in the Fund Agreements, except such as
have been made or obtained under the Act and the 1940 Act and such as may
be required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the Underwriters in the
manner contemplated herein and in the Prospectus, compliance with the NYSE
rules and the filing requirements of the Division of Corporate Finance of
the NASD.
(k) Neither the issuance and sale of the Securities, the execution,
delivery or performance of this Agreement or any of the Fund Agreements by
the Fund, nor the consummation by the Fund of the transactions herein or
therein contemplated (i) conflicts or will conflict with or constitutes or
will constitute a breach of the declaration of trust or by-laws of the
Fund, (ii) conflicts or will conflict with or constitutes or will
constitute a breach of or a default under, any material agreement,
indenture, lease or other instrument to which the Fund is a party or by
which it or any of its properties may be bound or (iii)
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violates or will violate any material statute, law, regulation or filing
or judgment, injunction, order or decree applicable to the Fund or any of
its properties or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Fund pursuant to
the terms of any agreement or instrument to which it is a party or by
which it may be bound or to which any of the property or assets of the
Fund is subject.
(l) No holders of securities of the Fund have rights to the
registration of such securities under the Registration Statement.
(m) The financial statements, together with related schedules and
notes, included or incorporated by reference in the Prospectus and the
Registration Statement present fairly in all material respects the
financial condition, results of operations and cash flows of the Fund as
of the dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and the 1940 Act and have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as
otherwise noted therein); and the other financial information and data
included in the Registration Statement and the Prospectus are accurately
derived from such financial statements and the books and records of the
Fund.
(n) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Fund or its property is pending or, to the best knowledge of the Fund,
threatened that (i) could reasonably be expected to have a material
adverse effect on the performance of this Agreement or the consummation of
any of the transactions herein contemplated or (ii) could reasonably be
expected to have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Fund,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(o) The Fund owns or leases all such properties as are necessary to
the conduct of its operations as presently conducted.
(p) The Fund is not (i) in violation of its declaration of trust or
by-laws, (ii) in breach or default in the performance of the terms of any
material indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which it is a party or bound or to which its
property is subject or (iii) in violation of any material law, ordinance,
administrative or governmental rule or regulation applicable to the Fund
or of any decree of the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court or
any other governmental, regulatory, self-regulatory or administrative
agency or any official having jurisdiction over the Fund.
(q) Deloitte & Touche LLP, who have audited the financial statements
included or incorporated by reference in the Registration Statement and
the Prospectus, are independent public accountants with respect to the
Fund within the meaning of the Act and the Act Rules and Regulations.
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(r) The Fund has not distributed and, prior to the later to occur of
(i) the Closing Date and (ii) completion of the distribution of the
Securities, will not distribute any offering material in connection with
the offering and sale of the Securities other than the Registration
Statement, the Preliminary Prospectus, the Prospectus or other materials
permitted by the Act, the 1940 Act or the Rules and Regulations.
(s) There are no transfer taxes or other similar fees or charges
under Federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and delivery
of this Agreement or the issuance by the Fund or sale by the Fund of the
Securities.
(t) The Fund has filed all foreign, federal, state and local tax
returns, if any, that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would not have
a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Fund, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto)) and has paid all taxes, if any, required to be paid
by it and any other assessment, fine or penalty levied against it, to the
extent that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good
faith or as would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Fund, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(u) All advertising, sales literature or other promotional material
(including "prospectus wrappers", "broker kits", "road show slides" and
"road show scripts"), whether in printed or electronic form, authorized in
writing by or prepared by the Fund or the Advisers for use in connection
with the offering and sale of the Securities (collectively, "sales
material") complied and comply in all material respects with the
applicable requirements of the Act, the 1940 Act, the Rules and
Regulations and the rules and interpretations of the NASD and if required
to be filed with the NASD under the NASD's conduct rules were provided to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, for filing.
No sales material contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(v) The Fund's trustees and officers/errors and omissions insurance
policy and its fidelity bond required by Rule 17g-1 of the 1940 Act Rules
and Regulations are in full force and effect; the Fund is in compliance
with the terms of such policy and fidelity bond in all material respects;
and there are no claims by the Fund under any such policy or fidelity bond
as to which any insurance company is denying liability or defending under
a reservation of rights clause; the Fund has not been refused any
insurance coverage sought or applied for; and the Fund has no reason to
believe that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business
7
at a cost that would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Fund, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(w) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities, if any ("permits") as are
necessary to own its property and to conduct its business in the manner
described in the Prospectus, except where failure to possess such permits
would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Fund; the
Fund has fulfilled and performed all its material obligations with respect
to such permits and no event has occurred which allows or, after notice or
lapse of time, would allow, revocation or termination thereof or results
in any other material impairment of the rights of the Fund under any such
permit, subject in each case to such qualification as may be set forth in
the Prospectus; and, except as described in the Prospectus, none of such
permits contains any restriction that is materially burdensome to the
Fund.
(x) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization and with the investment objectives, policies and
restrictions of the Fund and the applicable requirements of the 1940 Act,
the 1940 Act Rules and Regulations and the Internal Revenue Code of 1986,
as amended (the "Code"); (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles, to calculate net asset value, to maintain
accountability for assets and to maintain material compliance with the
books and records requirements under the 1940 Act and the 1940 Act Rules
and Regulations; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(y) The Fund has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Fund to facilitate the
sale or resale of the Securities, and the Fund is not aware of any such
action taken or to be taken by any affiliates of the Fund, except for
Securities repurchases in accordance with the 1940 Act and the 1940 Act
Rules and Regulations or the issuance or purchase of Common Shares
pursuant to the Dividend Reinvestment Plan.
(z) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1940 Act, the 1940
Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(aa) Except as disclosed in the Prospectus and Registration
Statement, no trustee of the Fund is an "interested person" (as defined in
the ▇▇▇▇ ▇▇▇) of the Fund or an "affiliated person" (as defined in the
▇▇▇▇ ▇▇▇) of any Underwriter listed in Schedule I hereto.
8
(bb) The Fund intends to direct the investment of the proceeds of
the offering of the Securities in such a manner as to comply with the
requirements of Subchapter M of the Code.
(cc) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or licensee of
any patents, patent licenses, trademarks, service marks or trade names
which it does not own, possess or license, except where the failure to
own, possess or license would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Fund.
(dd) Except as disclosed in the Registration Statement and the
Prospectus, the Fund (i) does not have any material lending or other
relationship with any bank or lending affiliate of Citigroup Global
Markets Holdings Inc. and (ii) does not intend to use any of the proceeds
from the sale of the Securities hereunder to repay any outstanding debt
owed to any affiliate of Citigroup Global Markets Holdings Inc.
(ee) There is and has been no failure on the part of the Fund and
any of the Fund's trustees or officers, in their capacities as such, to
comply with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules
and regulations promulgated in connection therewith (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act"), including Sections 302 and 906 related to certifications.
Any certificate signed by any officer of the Fund and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Fund, as to matters covered therein, to each Underwriter.
2. Representations and Warranties of the Advisers. Each of the
Adviser and the Subadvisers, severally as to itself only and not jointly or as
to any other party, represents and warrants to each Underwriter as follows:
(a) Such Adviser has been duly formed and is validly existing in
good standing under the laws of its state of organization, 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 is duly qualified to do business and is in good standing under the
laws of each jurisdiction which requires such qualification, except where
the failure to so qualify would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Adviser.
(b) Such Adviser is duly registered as an investment adviser under
the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act,
the Advisers Act Rules and Regulations or the 1940 Act Rules and
Regulations from acting under: (i) the Management Agreement or the
Administration Agreement, with respect to the Adviser; (ii) the applicable
Sub-Advisory Agreement, with respect to the Adviser, Parametric and
Rampart; (iii) the Additional Compensation Agreement, with respect to the
Adviser; or
9
(iv) the Structuring Fee Agreement, with respect to the Adviser; as
contemplated by the Prospectus.
(c) Such Adviser has full power and authority to enter into: (i)
this Agreement, with respect to the Adviser, Parametric and Rampart; (ii)
the Management Agreement and the Administration Agreement, with respect to
the Adviser; (iii) the applicable Sub-Advisory Agreement, with respect to
the Adviser, Parametric and Rampart; and (iv) the Additional Compensation
Agreement and the Structuring Fee Agreement, with respect to the Adviser.
The execution and delivery of, and the performance by such Adviser of its
obligations under such agreements have been duly and validly authorized by
such Adviser. This Agreement (with respect to the Adviser, Parametric and
Rampart), the Management Agreement (with respect to the Adviser), the
Administration Agreement (with respect to the Adviser), the applicable
Sub-Advisory Agreement (with respect to the Adviser, Parametric and
Rampart), the Additional Compensation Agreement (with respect to the
Adviser) and the Structuring Fee Agreement (with respect to the Adviser)
have been duly executed and delivered by such Adviser and constitute the
valid and legally binding agreements of such Adviser, enforceable against
such Adviser in accordance with their terms, except as rights to indemnity
and contribution hereunder may be limited by federal or state securities
laws and subject to the qualification that the enforceability of such
Adviser's obligations hereunder and thereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws relating
to or affecting creditors' rights generally and by general equitable
principles.
(d) Such Adviser has the financial resources available to it
necessary for the performance of its services and obligations as
contemplated in the Prospectus and under this Agreement, the Management
Agreement, the Administration Agreement, the applicable Sub-Advisory
Agreement, the Additional Compensation Agreement and the Structuring Fee
Agreement.
(e) The description of such Adviser and its business, and the
statements attributable to such Adviser, in the Registration Statement and
the Prospectus complied and comply in all material respects with the
provisions of the Act, the 1940 Act, the Advisers Act, the Rules and
Regulations and the Advisers Act Rules and Regulations and did not and
will not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(f) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving such
Adviser or its property is pending or, to the best knowledge of such
Adviser, threatened that (i) could reasonably be expected to have a
material adverse effect on the ability of such Adviser to fulfill its
obligations (A) hereunder, with respect to the Adviser, Parametric and
Rampart; or under (B) the Management Agreement and the Administration
Agreement, with respect to the Adviser; (C) the applicable Sub-Advisory
Agreement, with respect to the Adviser, Parametric and Rampart; or (D) the
Additional Compensation Agreement or the Structuring Fee Agreement, with
respect to the Adviser; or (ii) could reasonably be expected to have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings,
10
business or properties of such Adviser, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto); and
there are no agreements, contracts, indentures, leases or other
instruments relating to such Adviser that are required to be described in
the Registration Statement or the Prospectus or to be filed as an exhibit
to the Registration Statement that are not described or filed as required
by the Act, the 1940 Act or the Rules and Regulations.
(g) Such Adviser has such licenses, permits and authorizations of
governmental or regulatory authorities, if any ("permits") as are
necessary to own its property and to conduct its business in the manner
described in the Prospectus; such Adviser has fulfilled and performed all
its material obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of such Adviser under any such permit.
(h) This Agreement, the Management Agreement, the Administration
Agreement, the Sub-Advisory Agreements, the Additional Compensation
Agreement and the Structuring Fee Agreement comply in all material
respects with all applicable provisions of the 1940 Act, the 1940 Act
Rules and Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(i) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated (i) herein, with respect to the Adviser,
Parametric and Rampart; or in (ii) the Management Agreement or the
Administration Agreement, with respect to the Adviser; (iii) the
applicable Sub-Advisory Agreement, with respect to the Adviser, Parametric
and Rampart; or (iv) the Additional Compensation Agreement or the
Structuring Fee Agreement, with respect to the Adviser; except such as
have been made or obtained under the Act and the 1940 Act and such as may
be required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the Underwriters in the
manner contemplated herein and in the Prospectus, compliance with the NYSE
rules and the filing requirements of the Division of Corporate Finance of
the NASD.
(j) Neither the execution, delivery or performance of this Agreement
or the Management Agreement, the Administration Agreement, the
Sub-Advisory Agreements, the Additional Compensation Agreement and the
Structuring Fee Agreement, nor the consummation by the Fund or such
Adviser of the transactions herein or therein contemplated (i) conflicts
or will conflict with or constitutes or will constitute a breach of the
charter or declaration of trust or by-laws of such Adviser, (ii) conflicts
or will conflict with or constitutes or will constitute a breach of or a
default under, any material agreement, indenture, lease or other
instrument to which such Adviser is a party or by which it or any of its
properties may be bound or (iii) violates or will violate any material
statute, law, regulation or filing or judgment, injunction, order or
decree applicable to such Adviser or any of its properties or will result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of such Adviser pursuant to the
11
terms of any agreement or instrument to which such Adviser is a party or
by which such Adviser may be bound or to which any of the property or
assets of such Adviser is subject.
(k) Such Adviser has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Fund to facilitate the
sale or resale of the Securities, and such Adviser is not aware of any
such action taken or to be taken by any affiliates of such Adviser, except
for Securities repurchases in accordance with the 1940 Act and the 1940
Act Rules and Regulations or the issuance or purchase of Common Shares
pursuant to the Dividend Reinvestment Plan.
(l) In the event that the Fund or such Adviser makes available any
promotional materials intended for use only by qualified broker-dealers
and registered representatives thereof by means of an Internet web site or
similar electronic means, such Adviser will install and maintain
pre-qualification and password-protection or similar procedures which are
reasonably designed to effectively prohibit access to such promotional
materials by persons other than qualified broker-dealers and registered
representatives thereof.
Any certificate signed by any officer of such Adviser and delivered
to the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by such
Adviser, as to matters covered therein, to each Underwriter.
3. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Fund
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Fund, at a purchase price of $20.00 per share,
the amount of the Underwritten Securities set forth opposite such Underwriter's
name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Fund hereby grants an
option to the several Underwriters to purchase, severally and not jointly,
up to _____ Option Securities at the same purchase price per share as the
Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or
in part at any time and from time to time on or before the 45th day after
the date of the Prospectus upon written or telegraphic notice by the
Representatives to the Fund setting forth the number of shares of the
Option Securities as to which the several Underwriters are exercising the
option and the settlement date. The number of Option Securities to be
purchased by each Underwriter shall be the same percentage of the total
number of shares of the Option Securities to be purchased by the several
Underwriters as such Underwriter is purchasing of the Underwritten
Securities, subject to such adjustments as you in your absolute discretion
shall make to eliminate any fractional shares.
12
4. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
Section 3(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made at 10:00 AM, New York City time, on
April __, 2005 or at such time on such later date not more than three Business
Days after the foregoing date as the Representatives shall designate, which date
and time may be postponed by agreement between the Representatives and the Fund
or as provided in Section 10 hereof (such date and time of delivery and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the Fund
by wire transfer payable in same-day funds to an account specified by the Fund.
Delivery of the Underwritten Securities and the Option Securities shall be made
through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 3(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Fund will deliver the
Option Securities (at the expense of the Fund) to the Representatives on the
date specified by the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the Fund
by wire transfer payable in same-day funds to an account specified by the Fund.
If settlement for the Option Securities occurs after the Closing Date, the Fund
will deliver to the Representatives on the settlement date for the Option
Securities, and the obligation of the Underwriters to purchase the Option
Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 7 hereof.
5. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
6. Agreements of the Fund and the Advisers. The Fund and the
Advisers, jointly and severally, agree with the several Underwriters as follows:
(a) The Fund will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Fund will not file any amendment of the Registration
Statement or supplement to the Prospectus or any Rule 462(b) Registration
Statement unless the Fund has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under Rule 497,
the Fund will cause the Prospectus, properly completed, and any supplement
thereto to be filed in a form approved by the Representatives with the
Commission pursuant to Rule 497 within the time period prescribed and will
provide evidence satisfactory to the Representatives of such timely
filing. The Fund will promptly advise the Representatives (1) when the
Registration
13
Statement, if not effective at the Execution Time, shall have become
effective, (2) when the Prospectus, and any supplement thereto, shall have
been filed (if required) with the Commission pursuant to Rule 497 or when
any Rule 462(b) Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Prospectus or for any
additional information, (5) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) of
the receipt by the Fund of any notification with respect to the suspension
of the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Fund
will use its best efforts to prevent the issuance of any such stop order
or the suspension of any such qualification and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which, in the judgment of the Fund or the reasonable opinion of counsel to
the Fund or counsel to the Underwriters, the Prospectus as then
supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein in the
light of the circumstances under which they were made not misleading, or
if it shall be necessary to amend the Registration Statement or supplement
the Prospectus to comply with the Act, the 1940 Act and the Rules and
Regulations, the Fund promptly will (1) notify the Representatives of any
such event, (2) prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 6, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (3) supply any supplemented Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Fund will make generally available
to its security holders and to the Representatives an earnings statement
or statements of the Fund which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(d) The Fund will furnish to the Representatives and counsel for the
Underwriters signed copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Prospectus and the Prospectus and any
supplement thereto as the Representatives may reasonably request.
(e) The Fund will cooperate with you and with counsel for the
Underwriters in connection with, if necessary, the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities;
provided that in no event shall the Fund be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of
14
process in suits, other than those arising out of the offering or sale of
the Securities, in any jurisdiction where it is not now so subject.
(f) The Fund will not, without the prior written consent of
Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of, or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Fund or any affiliate of the Fund or any
person in privity with the Fund, directly or indirectly, including the
filing (or participation in the filing) of a registration statement with
the Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any other Common Shares or any
securities convertible into, or exercisable, or exchangeable for, Common
Shares; or publicly announce an intention to effect any such transaction
for a period of 180 days following the Execution Time, provided, however,
that the Fund may issue and sell Common Shares pursuant to any dividend
reinvestment plan of the Fund in effect at the Execution Time.
(g) The Fund will comply with all applicable securities and other
applicable laws, rules and regulations, including, without limitation, the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and will use its best efforts to cause the Fund's
trustees and officers, in their capacities as such, to comply with such
laws, rules and regulations, including, without limitation, the provisions
of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(h) The Fund and the Advisers will not take, directly or indirectly,
any action designed to or that would constitute or that might reasonably
be expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Fund to
facilitate the sale or resale of the Securities, except for Securities
repurchases in accordance with the 1940 Act and the 1940 Act Rules and
Regulations or the issuance or purchase of Common Shares pursuant to the
Dividend Reinvestment Plan.
(i) The Fund agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary Prospectus,
the Prospectus and the 1940 Act Notification and each amendment or
supplement to any of them; (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting
and packaging) of such copies of the Registration Statement, each
Preliminary Prospectus, the Prospectus, any sales material and all
amendments or supplements to any of them, as may, in each case, be
reasonably requested for use in connection with the offering and sale of
the Securities; (iii) the preparation, printing, authentication, issuance
and delivery of any certificates for the Securities, including any stamp
or transfer taxes in connection with the original issuance and sale of the
Securities; (iv) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum, dealer agreements and all other
agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Securities; (v) the registration of
the Securities under the Exchange Act and the listing of
15
the Securities on the NYSE; (vi) any registration or qualification of the
Securities for offer and sale under the securities or blue sky laws of the
several states (including filing fees and the reasonable fees and expenses
of counsel for the Underwriters relating to such registration and
qualification); (vii) any filings required to be made with the NASD
(including filing fees and the reasonable fees and expenses of counsel for
the Underwriters relating to such filings); (viii) the transportation and
other expenses incurred by or on behalf of Fund representatives in
connection with presentations to prospective purchasers of the Securities;
(ix) the fees and expenses of the Fund's accountants and the fees and
expenses of counsel (including local and special counsel) for the Fund;
(x) all other costs and expenses incident to the performance by the Fund
of its obligations hereunder; and (xi) an amount equal to $.005 per Common
Share for each Common Share sold pursuant to this Agreement, payable no
later than 45 days from the date of this Agreement to the Underwriters in
partial reimbursement of their expenses in connection with the offering.
To the extent that the foregoing costs and expenses incidental to the
performance of the obligations of the Fund under this Agreement exceed
$0.04 per Share, the Adviser will pay all such costs and expenses.
(j) The Fund will direct the investment of the net proceeds of the
offering of the Securities in such a manner as to comply with the
investment objectives, policies and restrictions of the Fund as described
in the Prospectus.
(k) The Fund will comply with the requirements of Subchapter M of
the Code to qualify as a regulated investment company under the Code.
(l) The Fund and the Advisers will use their reasonable best efforts
to perform all of the agreements required of them by this Agreement and
discharge all conditions of theirs to closing as set forth in this
Agreement.
7. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Fund and the Advisers
contained herein as of the Execution Time, the Closing Date and any settlement
date pursuant to Section 4 hereof, to the accuracy of the statements of the Fund
made in any certificates pursuant to the provisions hereof, to the performance
by the Fund or the Advisers of its obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the total
public offering price, if such determination occurred at or prior to 3:00
PM New York City time on such date or (ii) 9:30 AM on the Business Day
following the day on which the total public offering price was determined,
if such determination occurred after 3:00 PM New York City time on such
date; if filing of the Prospectus, or any supplement thereto, is required
pursuant to Rule 497, the Prospectus, and any such supplement, will be
filed in the manner and within the time period required by Rule 497; and
no stop order suspending the effectiveness of the Registration Statement
or order pursuant to Section 8(e) of the 1940 Act shall have been issued
and no
16
proceedings for that purpose shall have been instituted or threatened, and
any request of the Commission for additional information (to be included
in the Registration Statement or Prospectus or otherwise) shall have been
complied with in all material respects.
(b) The Fund shall have requested and caused ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Fund, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) The Fund has been duly formed and is validly existing as
an unincorporated 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 Prospectus, and is duly qualified to do business as a foreign
trust and is in good standing under the laws of each jurisdiction,
if any, which requires such qualification; and the Fund has no
subsidiaries;
(ii) The Fund is duly registered with the Commission under the
1940 Act as a closed-end, diversified management investment company
and all action has been taken by the Fund as required by the Act and
the 1940 Act and the Rules and Regulations in connection with the
issuance and sale of the Securities to make the public offering and
consummate the sale of the Securities as contemplated by this
Agreement; the Fund Agreements comply in all material respects with
all applicable provisions of the Act, the 1940 Act, the Advisers
Act, the Rules and Regulations and the Advisers Act Rules and
Regulations; and the Fund has not received any notice from the
Commission pursuant to Section 8(e) of the 1940 Act with respect to
the 1940 Act Notification or the Registration Statement;
(iii) This Agreement has been duly authorized, executed and
delivered by the Fund;
(iv) The Fund Agreements have been duly authorized, executed
and delivered by the Fund and constitute the valid and legally
binding agreements of the Fund, enforceable against the Fund in
accordance with their terms, except as rights to indemnity and
contribution may be limited by federal or state securities laws and
subject to the qualification that the enforceability of the Fund's
obligations thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles;
(v) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement or any of the
Fund Agreements by the Fund, nor the consummation by the Fund of the
transactions herein or therein contemplated or the adoption of the
Fund's Dividend Reinvestment Plan conflicts or will conflict with,
or results or will result in a breach of, the declaration of trust
or the by-laws of the Fund, or any material agreement or instrument
to which the Fund is a party or by which the Fund is bound, or
violates or will violate any federal or Massachusetts statute, law
or regulation or any judgment, injunction, order or
17
decree of any federal or Massachusetts governmental agency or body
that is applicable to the Fund and that is known to such counsel
which violation would have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Fund, or will result in the creation or imposition
of any material lien, charge or encumbrance upon any property or
assets of the Fund pursuant to the terms of any agreement or
instrument to which it is a party or by which it may be bound or to
which any of the property or assets of the Fund is subject;
(vi) The Fund's authorized equity capitalization is as set
forth in the Prospectus; the capital stock of the Fund conforms to
the description thereof contained in the Registration Statement and
the Prospectus; all outstanding Common Shares have been duly and
validly authorized and issued and are fully paid and nonassessable;
the Securities have been duly and validly authorized, and, when
issued and delivered to and paid for by the Underwriters pursuant to
this Agreement, will be fully paid and nonassessable; to our
knowledge, based upon a letter dated __, 2005, from ________,
Corporate Listings and Executive Vice President of the New York
Stock Exchange authorizing the Securities for listing on such
Exchange, the Securities have been authorized for listing on the New
York Stock Exchange and will be admitted and authorized for trading,
subject to official notice of issuance; the certificates for the
Securities are in valid and sufficient form; the holders of
outstanding Common Shares are not entitled to preemptive or other
rights to subscribe for the Securities; and, except as set forth in
the Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Fund are outstanding; in
regard to the Common Shares' nonassessability, it is noted that the
Fund is an entity of the type commonly known as a "Massachusetts
business trust." Under Massachusetts law, holders of such shares of
beneficial interest could, under certain circumstances described in
the Registration Statement, be held personally liable for
obligations of the Fund;
(vii) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Fund or its property of a character required to be disclosed in
the Registration Statement which is not adequately disclosed in the
Prospectus, and there are no agreements, contracts, indentures,
leases or other instruments that are required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required by the Act, the
1940 Act or the Rules and Regulations; and the statements included
in the Prospectus under the headings "Prospectus Summary--Special
Risk Considerations--Tax Risk," "Investment Objectives, Policies and
Risks--Risk Considerations--Tax Risk," "Distribution--Federal Income
Tax Matters," "Taxes" and "Description of Capital Structure" insofar
as such statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries of
such legal matters, agreements, documents or proceedings;
18
(viii) No consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in
connection with the transactions contemplated herein or in the Fund
Agreements, except such as have been made or obtained under the Act
and the 1940 Act and such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and distribution
of the Securities by the Underwriters in the manner contemplated in
this Agreement and in the Prospectus, compliance with the NYSE rules
and the filing requirements of the Division of Corporate Finance of
the NASD and such other approvals (specified in such opinion) as
have been obtained;
(ix) No holders of securities of the Fund have rights to the
registration of such securities under the Registration Statement;
and
(x) To the knowledge of such counsel after due inquiry,
including oral inquiries of the Commission on ____________, 2005,
the Registration Statement has become effective under the Act; any
required filing of the Prospectus, and any supplements thereto,
pursuant to Rule 497 have been made in the manner and within the
time period required by Rule 497; to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose have been
instituted or threatened and the Registration Statement and the
Prospectus (other than the financial statements and other financial
and statistical information contained therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the applicable requirements of the Act, the 1940 Act
and the Rules and Regulations; and such counsel has no reason to
believe that on the Effective Date or the date the Registration
Statement was last deemed amended the Registration Statement
contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus
as of its date and on the Closing Date included or includes any
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements and
other financial and statistical information contained therein, as to
which such counsel need express no opinion).
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the Commonwealth of
Massachusetts or the Federal laws of the United States, to the extent they deem
proper and specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel
for the Underwriters and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Fund and public
officials. References to the Prospectus in this paragraph (b) shall also include
any supplements thereto at the Closing Date.
(c) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇▇▇ ▇. Marius, counsel for the Adviser, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, to the
effect that:
19
(i) The Adviser has been duly formed and is validly existing
as an unincorporated 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 Prospectus, and is duly qualified to do business as
a foreign trust and is in good standing under the laws of each
jurisdiction which requires such qualification;
(ii) The Adviser is duly registered under the Advisers Act as
an investment adviser and is not prohibited by the Advisers Act, the
1940 Act, the Advisers Act Rules and Regulations or the 1940 Act
Rules and Regulations from acting under the Management Agreement,
the Administration Agreement, the Sub-Advisory Agreements, the
Additional Compensation Agreement or the Structuring Fee Agreement
as contemplated by the Prospectus;
(iii) The Adviser has full power and authority to enter into
this Agreement, the Management Agreement, the Administration
Agreement, the Sub-Advisory Agreements, the Additional Compensation
Agreement and the Structuring Fee Agreement;
(iv) This Agreement has been duly authorized, executed and
delivered by the Adviser;
(v) The Management Agreement, the Administration Agreement,
the Sub-Advisory Agreements, the Additional Compensation Agreement
and the Structuring Fee Agreement have been duly authorized,
executed and delivered by the Adviser and the Management Agreement,
the Administration Agreement, the Sub-Advisory Agreements, the
Additional Compensation Agreement and the Structuring Fee Agreement
are each a valid and legally binding agreement of the Adviser,
enforceable against the Adviser in accordance with its terms except
as rights to indemnity and contribution may be limited by federal or
state securities laws and subject to the qualification that the
enforceability of the Adviser's obligations thereunder may be
limited by bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and
by general equitable principles;
(vi) This Agreement, the Management Agreement, the
Administration Agreement, the Sub-Advisory Agreements, the
Additional Compensation Agreement and the Structuring Fee Agreement
comply in all material respects with all applicable provisions of
the Act, the 1940 Act, the Advisers Act, the Rules and Regulations
and the Advisers Act Rules and Regulations;
(vii) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement, the Management
Agreement, the Administration Agreement, the Sub-Advisory
Agreements, the Additional Compensation Agreement or the Structuring
Fee Agreement nor the consummation by the Adviser of the
transactions herein or therein contemplated conflicts or will
conflict with, or results or will result in a breach of, the
20
organizational documents of the Adviser, or any material agreement
or instrument to which the Adviser is a party or by which the
Adviser is bound, or violates or will violate any federal or
Massachusetts statute, law or regulation or any judgment,
injunction, order or decree of any federal or Massachusetts
governmental agency or body that is applicable to the Adviser and
that is known to such counsel which violation would have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Adviser, or will result in
the creation or imposition of any material 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;
(viii) The description of the Adviser and its business in the
Prospectus complies in all material respects with all requirements
of the Act, the 1940 Act and the Rules and Regulations;
(ix) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Adviser or its property of a character required to be disclosed
in the Registration Statement which is not adequately disclosed in
the Prospectus, and there are no agreements, contracts, indentures,
leases or other instruments that are required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required by the Act, the
1940 Act or the Rules and Regulations;
(x) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required on the part
of the Adviser in connection with the transactions contemplated
herein or in the Management Agreement, the Administration Agreement,
the Sub-Advisory Agreements, the Additional Compensation Agreement
or the Structuring Fee Agreement, except such as have been made or
obtained under the Act, the 1940 Act and the Advisers Act and such
as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by
the Underwriters in the manner contemplated in this Agreement and in
the Prospectus, compliance with the NYSE rules and the filing
requirements of the Division of Corporate Finance of the NASD and
such other approvals (specified in such opinion) as have been
obtained; and
(xi) Such counsel has no reason to believe that on the
Effective Date or the date the Registration Statement was last
deemed amended the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus as of its date and on
the Closing Date included or includes any untrue statement of a
material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in
21
each case, other than the financial statements and other financial and
statistical information contained therein, as to which such counsel
need express no opinion).
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the Commonwealth of
Massachusetts or the Federal laws of the United States, to the extent they deem
proper and specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel
for the Underwriters and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Fund and public
officials. References to the Prospectus in this paragraph (c) shall also include
any supplements thereto at the Closing Date.
(d) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇▇▇ ▇.
Marius, counsel for Parametric, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) Parametric has been duly formed and is validly existing in good
standing as a limited liability company under the laws of the State of
Delaware, with full power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus, and
is duly qualified to do business as a foreign limited liability company
and is in good standing under the laws of each jurisdiction which requires
such qualification;
(ii) Parametric is duly registered under the Advisers Act as an
investment adviser and is not prohibited by the Advisers Act, the 1940
Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and
Regulations from acting under its Sub-Advisory Agreement as contemplated
by the Prospectus;
(iii) Parametric has full power and authority to enter into this
Agreement and its Sub-Advisory Agreement;
(iv) This Agreement has been duly authorized, executed and delivered
by Parametric;
(v) The Sub-Advisory Agreement with Parametric has been duly
authorized, executed and delivered by Parametric and said Sub-Advisory
Agreement is a valid and legally binding agreement of Parametric,
enforceable against Parametric in accordance with its terms except as
rights to indemnity and contribution may be limited by federal or state
securities laws and subject to the qualification that the enforceability
of Parametric's obligations thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable principles;
(vi) This Agreement and the Sub-Advisory Agreement with Parametric
comply in all material respects with all applicable provisions of the Act,
the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers
Act Rules and Regulations;
22
(vii) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement or the Sub-Advisory
Agreement with Parametric nor the consummation by Parametric of the
transactions herein or therein contemplated conflicts or will conflict
with, or results or will result in a breach of, the organizational
documents of the Subadviser, or any material agreement or instrument to
which the Subadviser is a party or by which the Subadviser is bound, or
violates or will violate any federal, Massachusetts or Delaware statute,
law or regulation or any judgment, injunction, order or decree of any
federal, Massachusetts or Delaware governmental agency or body that is
applicable to the Subadviser and that is known to such counsel which
violation would have a material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of the
Subadviser, or will result in the creation or imposition of any material
lien, charge or encumbrance upon any property or assets of the Subadviser
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 Subadviser is subject;
(viii) The description of Parametric and its business in the
Prospectus complies in all material respects with all requirements of the
Act, the 1940 Act and the Rules and Regulations;
(ix) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
Parametric or its property of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Prospectus, and there are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit thereto, which is
not described or filed as required by the Act, the 1940 Act or the Rules
and Regulations;
(x) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required on the part of Parametric
in connection with the transactions contemplated herein or in the
Sub-Advisory Agreement with Parametric, except such as have been made or
obtained under the Act, the 1940 Act and the Advisers Act and such as may
be required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the Underwriters in the
manner contemplated in this Agreement and in the Prospectus, compliance
with the NYSE rules and the filing requirements of the Division of
Corporate Finance of the NASD and such other approvals (specified in such
opinion) as have been obtained; and
(xi) Such counsel has no reason to believe that on the Effective
Date or the date the Registration Statement was last deemed amended the
Registration Statement contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus as of its date and on the Closing
23
Date included or includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading (in each case, other than the financial
statements and other financial and statistical information contained
therein, as to which such counsel need express no opinion).
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the Commonwealth of
Massachusetts, the State of Delaware or the Federal laws of the United States,
to the extent they deem proper and specified in such opinion, upon the opinion
of other counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of fact, to
the extent they deem proper, on certificates of responsible officers of the Fund
and public officials. References to the Prospectus in this paragraph (d) shall
also include any supplements thereto at the Closing Date.
(e) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for Rampart, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, to the effect that:
(i) Rampart has been duly incorporated and is validly existing in
good standing as a corporation under the laws of the Commonwealth of
Massachusetts, with full corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification;
(ii) Rampart is duly registered under the Advisers Act as an
investment adviser and is not prohibited by the Advisers Act, the 1940
Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and
Regulations from acting under its Sub-Advisory Agreement as
contemplated by the Prospectus;
(iii) Rampart has full power and authority to enter into this
Agreement and its Sub-Advisory Agreement;
(iv) This Agreement has been duly authorized, executed and delivered
by Rampart;
(v) The Sub-Advisory Agreement with Rampart has been duly
authorized, executed and delivered by Rampart and said Sub-Advisory
Agreement is a valid and legally binding agreement of Rampart,
enforceable against Rampart in accordance with its terms except as
rights to indemnity and contribution may be limited by federal or state
securities laws and subject to the qualification that the
enforceability of Rampart's obligations thereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general
equitable principles;
(vi) This Agreement and the Sub-Advisory Agreement with Rampart
comply in all material respects with all applicable provisions of the
Act, the 1940 Act, the
24
Advisers Act, the Rules and Regulations and the Advisers Act Rules and
Regulations;
(vii) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement or the Sub-Advisory
Agreement with Rampart nor the consummation by Rampart of the transactions
herein or therein contemplated conflicts or will conflict with, or results
or will result in a breach of, the organizational documents of the
Subadviser, or any material agreement or instrument to which the
Subadviser is a party or by which the Subadviser is bound, or violates or
will violate any federal or Massachusetts statute, law or regulation or
any judgment, injunction, order or decree of any federal or Massachusetts
governmental agency or body that is applicable to the Subadviser and that
is known to such counsel which violation would have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Subadviser, or will result in the creation
or imposition of any material lien, charge or encumbrance upon any
property or assets of the Subadviser 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 Subadviser is subject;
(viii) The description of Rampart and its business in the Prospectus
complies in all material respects with all requirements of the Act, the
1940 Act and the Rules and Regulations;
(ix) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving Rampart
or its property of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Prospectus, and there are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit thereto, which is
not described or filed as required by the Act, the 1940 Act or the Rules
and Regulations;
(x) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required on the part of Rampart in
connection with the transactions contemplated herein or in the
Sub-Advisory Agreement with Rampart, except such as have been made or
obtained under the Act, the 1940 Act and the Advisers Act, compliance with
the NYSE rules and the filing requirements of the Division of Corporate
Finance of the NASD and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated in this
Agreement and in the Prospectus and such other approvals (specified in
such opinion) as have been obtained; and
(xi) Such counsel has no reason to believe that on the Effective
Date or the date the Registration Statement was last deemed amended the
Registration
25
Statement contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus as of its
date and on the Closing Date included or includes any untrue statement of
a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading (in each case, other than the
financial statements and other financial and statistical information
contained therein, as to which such counsel need express no opinion).
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the Commonwealth of
Massachusetts or the Federal laws of the United States, to the extent they deem
proper and specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel
for the Underwriters and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Fund and public
officials. References to the Prospectus in this paragraph (e) shall also include
any supplements thereto at the Closing Date.
(f) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the issuance
and sale of the Securities, the Registration Statement, the Prospectus (together
with any supplement thereto) and other related matters as the Representatives
may reasonably require, and the Fund and the Advisers shall have furnished to
such counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(g) Each of the Fund and the Advisers shall have furnished to the
Representatives a certificate, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of each of the Fund
and the Advisers, as the case may be, or such other officers of the foregoing
deemed appropriate by counsel to the Underwriters, dated the Closing Date, to
the effect that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, any supplements to the Prospectus and
this Agreement and that:
(i) The representations and warranties of the Fund and each of the
Advisers in this Agreement are true and correct on and as of the Closing
Date with the same effect as if made on the Closing Date and the Fund and
each of the Advisers have complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Fund's or each of the Adviser's knowledge,
threatened; and
(iii) Since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto) (with
respect to the certificate of the Fund) and since the date of the
Prospectus (with respect to the certificate of
26
the Advisers), there has been no material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Fund or each of the Advisers, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(h) The Fund shall have requested and caused Deloitte & Touche LLP
to have furnished to the Representatives, at the Execution Time and at the
Closing Date, letters, dated respectively as of the Execution Time and as
of the Closing Date, in form and substance heretofore approved by the
Representatives.
(i) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any material change specified in
the letter referred to in paragraph (h) of this Section 7 delivered on the
Closing Date from the letter delivered at the Execution Time or (ii) any
change, or any development involving a prospective change, in or affecting
the condition (financial or otherwise), earnings, business or properties
of the Fund and each of the Advisers, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto) the
effect of which, in any case referred to in clause (i) or (ii) above, is,
in the sole judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of any
supplement thereto).
(j) The Securities shall have been listed and admitted and
authorized for trading on the NYSE, and satisfactory evidence of such
actions shall have been provided to the Representatives.
(k) Prior to the Closing Date, the Fund and the Advisers shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 7 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Fund in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 7 shall be
delivered at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the
Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date.
27
8. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 hereof is not satisfied,
because of any termination pursuant to Section 11 hereof or because of any
refusal, inability or failure on the part of the Fund or the Advisers to perform
any agreement herein or comply with any provision hereof other than by reason of
a default by any of the Underwriters, the Advisers will reimburse the
Underwriters severally through Citigroup Global Markets Inc. on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
9. Indemnification and Contribution. (a) The Fund and the Advisers,
jointly and severally, agree to indemnify and hold harmless each of you and each
other Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several (including reasonable costs of investigation),
to which they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration statement for
the Securities as originally filed or in any amendment thereof (and including
any post-effective amendment, any Rule 462(b) Registration Statement and any
Rule 430A Information deemed to be included or incorporated therein), or in the
Prospectus, any Preliminary Prospectus, any sales material (or any amendment or
supplement to any of the foregoing), or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Fund and the Advisers will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Fund and the Advisers by or on behalf of any
Underwriter through the Representatives specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the Fund and the
Advisers may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless each of the Fund and the Advisers, each of its directors or
trustees, each of its officers who signs the Registration Statement, and each
person who controls the Fund or the Advisers within the meaning of either the
Act or the Exchange Act, to the same extent as the foregoing indemnity from the
Fund and the Advisers to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Fund or the Advisers
by or on behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have. The Fund and the Advisers acknowledge that the statements
set forth in the last paragraph of the cover page regarding delivery of the
Securities and, under the heading "Underwriting", (i) the list of Underwriters
and their respective participation in the sale of the Securities, (ii) the
sentences related to concessions
28
and reallowances and (iii) the paragraph related to stabilization, syndicate
covering transactions and penalty bids in any Preliminary Prospectus and the
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 9 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Fund, the Advisers and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively, "Losses") to which the
Fund, the Advisers and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Fund and the Advisers on the one hand (treated jointly for this purpose as one
person) and by the Underwriters on the other from the offering of the
Securities; provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Fund, the Advisers and the
Underwriters severally shall contribute in such proportion as is appropriate to
reflect not only
29
such relative benefits but also the relative fault of the Fund and the Advisers
on the one hand (treated jointly for this purpose as one person) and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Fund and the Advisers (treated jointly for this purpose
as one person) shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits received by
the Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Prospectus.
Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Fund and the Advisers on the one hand (treated jointly for this purpose as one
person) or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Fund, the Advisers and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Fund or the Advisers within the meaning of either the Act or the Exchange
Act, each officer of the Fund and the Advisers who shall have signed the
Registration Statement and each director or trustee of the Fund and the Advisers
shall have the same rights to contribution as the Fund and the Advisers, subject
in each case to the applicable terms and conditions of this paragraph (d).
(e) No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability from claimants on claims that are the
subject matter of such action, suit or proceeding.
(f) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Fund and the Advisers 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 Advisers or their shareholders,
trustees, directors, managers, members or officers or any person controlling the
Fund or the Advisers (control to be determined within the meaning of the Act or
the Exchange Act), (ii) acceptance of any Securities and payment therefor
hereunder and (iii) any termination of this Agreement. A successor to any
Underwriter or to the Fund, the Advisers or their shareholders, trustees,
directors, managers, members or officers or any person controlling
30
any Underwriter, the Fund or the Advisers shall be entitled to the benefits of
the indemnity, contribution and reimbursement agreements contained in this
Section 9.
10. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter, the
Fund or the Advisers. In the event of a default by any Underwriter as set forth
in this Section 10, the Closing Date shall be postponed for such period, not
exceeding five Business Days, as the Representatives shall determine in order
that the required changes in the Registration Statement and the Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Fund and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
11. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, without liability on the part of
the Underwriters to the Fund or the Advisers, by notice given to the Fund or the
Advisers prior to delivery of and payment for the Securities, if at any time
prior to such time (a) trading in the Fund's Common Shares shall have been
suspended by the Commission or the NYSE or trading in securities generally on
the NYSE shall have been suspended or limited or minimum prices shall have been
established on the exchange, (b) a banking moratorium shall have been declared
either by Federal or New York State authorities or (c) there shall have occurred
any outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of any
supplement thereto).
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
each of the Fund and the Advisers or its officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Fund or the Advisers or any of the officers, trustees, directors,
employees, agents or controlling persons referred to in Section 9 hereof, and
will survive delivery of and payment for the Securities. The provisions of
Sections 8 and 9 hereof shall survive the termination or cancellation of this
Agreement.
31
13. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, Citigroup Global
Markets Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention:
General Counsel; or, if sent to the Fund or the Advisers, will be mailed,
delivered or telefaxed to ▇▇▇▇▇ ▇▇▇▇▇ Tax-Managed Buy-Write Income Fund (fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to it at The ▇▇▇▇▇ ▇▇▇▇▇ Building, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of the Legal Department.
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, trustees, directors, employees, agents and controlling persons
referred to in Section 9 hereof, and no other person will have any right or
obligation hereunder.
15. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
17. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
18. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"1940 Act" shall mean the Investment Company Act of 1940, as
amended.
"1940 Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the 1940 Act.
"1940 Act Notification" shall mean a notification of registration of
the Fund as an investment company under the 1940 Act on Form N-8A, as the
1940 Act Notification may be amended from time to time.
"Act" shall mean the Securities Act of 1933, as amended.
"Act Rules and Regulations" shall mean the rules and regulations of
the Commission under the Act.
"Advisers Act" shall mean the Investment Advisers Act of 1940, as
amended.
"Advisers Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the Advisers Act.
32
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"NASD" shall mean the National Association of Securities Dealers,
Inc.
"Preliminary Prospectus" shall mean any preliminary prospectus
(including the statement of additional information incorporated by
reference therein) referred to in paragraph 1(a) above and any preliminary
prospectus (including the statement of additional information incorporated
by reference therein) included in the Registration Statement at the
Effective Date that omits Rule 430A Information.
"Prospectus" shall mean the prospectus and any amendment or
supplement thereto (including the statement of additional information
incorporated by reference therein) relating to the Securities that is
first filed pursuant to Rule 497 after the Execution Time or, if no filing
pursuant to Rule 497 is required, shall mean the form of final prospectus
(including the statement of additional information incorporated by
reference therein) relating to the Securities included in the Registration
Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in
the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date, shall
also mean such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective Date
as provided by Rule 430A.
"Rule 430A" and "Rule 462" refer to such rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
33
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred to
in Section 1(a) hereof.
"Rule 497" refers to Rule 497(c) or 497(h) under the Act, as
applicable.
"Rules and Regulations" shall mean, collectively, the Act Rules and
Regulations and the 1940 Act Rules and Regulations.
34
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Fund, the Advisers and the several Underwriters.
Very truly yours,
▇▇▇▇▇ ▇▇▇▇▇ TAX-MANAGED BUY-
WRITE INCOME FUND
By: ________________________
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT
By: ________________________
Name:
Title:
PARAMETRIC PORTFOLIO
ASSOCIATES LLC
By: ________________________
Name:
Title:
RAMPART INVESTMENT
MANAGEMENT COMPANY, INC.
By: ________________________
Name:
Title:
35
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
By: ________________________
Name:
Title:
For itself and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
NUMBER OF UNDERWRITTEN
SECURITIES TO BE
UNDERWRITERS PURCHASED
------------ ----------------------
Citigroup Global Markets Inc. ...................... ---------
Total ..................................... =========