______________________ Shares*
NUVEEN SENIOR INCOME FUND
Common Shares of Beneficial Interest
Par Value $.01 Per Share
UNDERWRITING AGREEMENT
----------------------
______________, 1999
PAINEWEBBER INCORPORATED
▇▇▇▇ NUVEEN & CO. INCORPORATED
as Representatives of the Several Underwriters
named in Schedule 1 hereto
c/o PaineWebber Incorporated
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Nuveen Senior Income Fund, a Massachusetts business trust (the
"Fund"), proposes to issue and sell to you and the other underwriters named in
Schedule 1 hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), _______________________ shares of
beneficial interest (the "Firm Shares"), par value $.01 per share (the "Shares
of Beneficial Interest"). In addition, the Fund hereby grants to the
Underwriters an option (the "Option") to purchase up to an additional [_____] of
its Shares of Beneficial Interest (the "Option Shares") solely for the purpose
of covering over-allotments. The Firm Shares and the Option Shares are referred
to collectively herein as the "Shares."
Nuveen Senior Loan Asset Management Inc., a Delaware corporation (the
"Investment Adviser") and a wholly-owned subsidiary of ▇▇▇▇ Nuveen & Co.
Incorporated ("Nuveen"), pursuant to which will act as the Fund's investment
adviser pursuant to an Investment Management Agreement by and between the Fund
and the Investment Adviser, dated as of ____________, 1999 (the "Investment
Management
------------------
* Plus an option to purchase, in the aggregate, up to ______________________
additional Shares of Beneficial Interest to cover over-allotments.
Agreement"). The Underwriters acknowledge that certain registered broker-dealers
may enter into one or both of a Master Selected Dealer Agreement with
PaineWebber Incorporated, dated June 11, 1984 (the "PaineWebber Master Selected
Dealer Agreement") or with Nuveen dated May __, 1999, (the "Nuveen Master
Selected Dealer Agreement"), pursuant to which such broker-dealer may act as a
Selling Group Member ("Selling Group Member") in connection with the
distribution of the Shares. The Underwriters acknowledge that in the event such
Selling Group Member has entered into both the PaineWebber Master Selected
Dealer Agreement and the Nuveen Master Selected Dealer Agreement the terms and
conditions of the PaineWebber Master Selected Dealer Agreement shall control and
that in the event such Selling Group Member shall have entered into only the
Nuveen Master Selected Dealer Agreement the terms of the Nuveen Master Selected
Dealer Agreement shall control. In addition, the Fund and the Investment Adviser
have entered into an Expense Reimbursement Agreement, dated as of
_________________________, 1999 (the "Expense Reimbursement Agreement").
_________________________________ will act as the custodian (the "Custodian") of
the Fund's cash and portfolio assets pursuant to a Custody Agreement between the
Fund and the Custodian, effective as of ____________, 1999 (the "Custody
Agreement"). _______________________________ will act as the Fund's transfer
agent and dividend disbursing agent (the "Transfer Agent") pursuant to a
transfer agency agreement between the Fund and the Transfer Agent, dated as of
____________, 1999 (the "Transfer Agency Agreement"). The Fund has adopted a
Deferred Compensation Plan (the "Deferred Compensation Plan") in connection with
the compensation of certain of its trustees.
The Fund and the Investment Adviser each hereby confirms as follows
their agreements with the Representatives and the several other Underwriters.
1. Sale and Purchase; Compensation
(a) The Fund will issue and sell to each Underwriter, and each
Underwriter will purchase from the Fund, the number of Firm Shares set forth
opposite such Underwriter's name in Schedule 1 hereto, at the purchase price of
$__________ per Firm Share.
(b) The Fund grants to the Underwriters the Option to purchase
all or any part of the Option Shares for the same consideration per share as for
the Firm Shares. The Option may be exercised only to cover over-allotments in
the sales of the Firm Shares by the Underwriters. The number of Option Shares
(adjusted by the Representatives to eliminate fractions) to be purchased by each
Underwriter will be the
2
same percentage of the aggregate number of Option Shares being sold as such
Underwriter is obligated to purchase of the Firm Shares. Such Option may be
exercised in whole or in part, only to cover over-allotments, at any time or
from time to time on or before the 45th day after the date of this Underwriting
Agreement, upon written or telefacsimile notice (the "Option Shares Notice")
from the Representatives to the Fund no later than 12:00 noon, New York City
time, at least two and not more than five business days before the date
specified for closing in the Option Shares Notice (the "Option Shares Closing
Date"), setting forth the number of Option Shares to be purchased and the time
and date of such purchase. Upon delivery and receipt of the Option Shares
Notice, the Fund will issue and sell to each Underwriter, and each Underwriter
will purchase from the Fund, on the Option Shares Closing Date, its portion of
the number of Option Shares set forth in the Option Shares Notice.
(c) The obligations of the Underwriters under this Underwriting
Agreement are several and not joint and are undertaken on the basis of the
representations and are subject to the conditions set forth in this Underwriting
Agreement.
2. Payment and Delivery. Delivery by the Fund of the Firm Shares
(the "Firm Shares Closing") to the Representatives for the accounts of the
Underwriters against payment of the purchase price by wire transfer of Federal
Funds or similar same day funds to the Fund for the Firm Shares, will take place
at the offices of PaineWebber Incorporated (the "Managing Representative"), 1285
Avenue of the Americas, New York, New York or such other location as is agreed
upon by the parties hereto, or through the facilities of the Depository Trust
Company or another mutually agreeable facility, at 9:00 a.m., New York City
time, on the third business day following the date of this Underwriting
Agreement, or at such time on such other date, not later than ten business days
after the date of this Underwriting Agreement, as may be agreed upon by the Fund
and the Managing Representative (the "Firm Shares Closing Date").
If and to the extent that the Option is exercised, delivery of the
Option Shares and payment by the Underwriters (in the manner specified above)
will take place at the offices or through the facilities specified above for the
Firm Shares Closing at the time and date (which may be the Firm Shares Closing
Date) specified in the Option Shares Notice. Any Option Shares Closing Date may
not be later than three business days following the exercise of the related
Option. The Firm Shares Closing Date and any Option Shares Closing Date are
called the "Closing Dates."
Certificates evidencing Shares of Beneficial Interest will be in
definitive form (or temporary form acceptable to the New York Stock Exchange),
registered in
3
such names and in such denominations as the Managing Representative requests at
least three full business days before the Firm Shares Closing Date or, in the
case of Option Shares, on the day of notice of exercise of the Option as
described in Section 1(b), and will be made available to the Managing
Representative for checking and packaging, at a place in New York City
designated by the Managing Representative, at least one full business day before
the relevant Closing Date.
3. Registration Statement and Prospectus; Public Offering. The Fund
has filed with the Securities and Exchange Commission (the "Commission"),
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), the
Investment Company Act of 1940, as amended (the "Investment Company Act"), and
the published rules and regulations adopted by the Commission under the
Securities Act (the "Securities Act Rules") and the Investment Company Act (the
"Investment Company Act Rules"), a Notification of Registration on Form N-8A
(the "Notification") pursuant to Section 8 of the Investment Company Act and a
registration statement on Form N-2 (File Nos. 333-_____________ and 811-
____________) relating to the Shares (the "registration statement"), including a
preliminary prospectus (including any preliminary statement of additional
information), and such amendments to such registration statement as may have
been required to the date of this Underwriting Agreement. The preliminary
prospectus (including any preliminary statement of additional information) is to
be used in connection with the offering and sale of the Shares. The term
"Preliminary Prospectus" as used herein means any preliminary prospectus
(including any preliminary statement of additional information) included at any
time as a part of the registration statement and any preliminary prospectus
(including any preliminary statement of additional information) omitted
therefrom pursuant to the Securities Act Rules.
The Fund has furnished the Representatives copies of such registration
statement, each amendment to such registration statement filed by the Fund with
the Commission and the Preliminary Prospectus filed by the Fund with the
Commission or used by the Fund. If the registration statement has not become
effective, a further amendment (the "Final Amendment") to such registration
statement, including the forms of final prospectus (including any final
statement of additional information), necessary to permit such registration
statement to become effective will promptly be filed by the Fund with the
Commission. If such registration statement has become effective and any
prospectus (including any statement of additional information) contained therein
omits certain information at the time of effectiveness pursuant to Rule 430A of
the Securities Act Rules, a final prospectus (the "Rule 430A Prospectus")
containing such omitted information will be filed by the Fund with the
Commission in accordance with Rule 497(h) of the Securities Act Rules. The
registration statement as amended at the time
4
it becomes or became effective (the "Effective Date"), including financial
statements and all exhibits, and any information deemed to be included by Rule
430A, is called the "Registration Statement." The term "Prospectus" means the
prospectus (including any statement of additional information) in the form in
which it is first filed with the Commission pursuant to Rule 497(b), (h) or (j)
of the Securities Act Rules, as the case may be.
The Fund and the Investment Adviser understand that the Underwriters
propose to make a public offering of the Firm Shares, as described in the
Prospectus, as soon after the Effective Date (or, if later, after the date this
Underwriting Agreement is signed) as the Managing Representative deems
advisable. The Fund confirms that the Underwriters and dealers have been
authorized to distribute the Preliminary Prospectus relating to the Shares
included in Pre-Effective Amendment No. 1 of the registration statement and are
authorized to distribute the Prospectus and any amendments or supplements
thereto.
4. Representations.
(a) Each of the Fund, the Investment Adviser and Nuveen jointly
and severally represents to each Underwriter as follows:
(i) On (A) the Effective Date and the date on which the
Prospectus is first filed with the Commission pursuant to Rule 497(b), (h)
or (j) of the Securities Act Rules, as the case may be, (B) the date on
which any post-effective amendment to the Registration Statement (except
any post-effective amendment which is filed with the Commission after the
later of (x) one year from the date of this Underwriting Agreement or (y)
the date on which the distribution of the Shares is completed) became or
becomes effective or any amendment or supplement to the Prospectus was or
is filed with the Commission and (C) the Closing Dates, the Registration
Statement, the Prospectus and any such amendment or supplement thereto and
the Notification complied or will comply in all material respects with the
requirements of the Securities Act, the Investment Company Act, the
Securities Act Rules and the Investment Company Act Rules, as the case may
be. On the Effective Date and on the date that any post-effective
amendment to the Registration Statement (except any post-effective
amendment which is filed with the Commission after the later of (x) one
year from the date of this Underwriting Agreement or (y) the date on which
the distribution
5
of the Shares is completed) became or becomes effective, neither the
Registration Statement nor any such amendment did or will contain any
untrue statement of a material fact or omit to state a material fact
required to be stated in it or necessary to make the statements in it not
misleading. At the Effective Date and, if applicable, the date the
Prospectus or any amendment or supplement to the Prospectus was or is filed
with the Commission and at the Closing Dates, the Prospectus did not or
will not, as the case may be, contain any untrue statement of a material
fact or omit to state a material fact required to be stated in it or
necessary to make the statements in it, in light of the circumstances under
which they were made, not misleading. The foregoing representations in this
Section 4(a)(i) do not apply to statements or omissions relating to the
Underwriters made in reliance on and in conformity with information
furnished in writing to the Fund by the Representatives expressly for use
in the Registration Statement, the Prospectus, or any amendments or
supplements thereto, as described in Section 7(f) hereof.
(ii) The Fund has been duly formed, is validly existing as a
business trust under the laws of The Commonwealth of Massachusetts, with
full power and authority to conduct all the activities conducted by it, to
own or lease all assets owned or leased by it and to conduct its business
as described in the Registration Statement and Prospectus, and the Fund is
duly licensed and qualified to do business and in good standing in each
jurisdiction in which its ownership or leasing of property or its
conducting of business requires such qualification, except where the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Fund, and the Fund owns, possesses or has obtained
and currently maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations, whether foreign or domestic,
necessary to carry on its business as contemplated in the Prospectus. The
Fund has no subsidiaries.
(iii) The capitalization of the Fund is as set forth in the
Registration Statement and the Prospectus. The Shares of Beneficial
Interest of the Fund conform in all material respects to the description of
them in the Prospectus. All the outstanding Shares of Beneficial Interest
have been duly authorized and are validly issued, fully paid and
nonassessable (except as described in the Registration Statement). The
Shares to be issued and delivered to and paid for by the
6
Underwriters in accordance with this Underwriting Agreement against payment
therefor as provided by this Underwriting Agreement have been duly
authorized and when issued and delivered to the Underwriters will have been
validly issued and will be fully paid and nonassessable (except as
described in the Registration Statement). No person is entitled to any
preemptive or other similar rights with respect to the Shares.
(iv) The Fund is duly registered with the Commission under
the Investment Company Act as a non-diversified, closed-end management
investment company, and, subject to the filing of the Final Amendment, if
not already filed, all action under the Securities Act, the Investment
Company Act, the Securities Act Rules and the Investment Company Act Rules,
as the case may be, necessary to make the public offering and consummate
the sale of the Shares as provided in this Underwriting Agreement has or
will have been taken by the Fund.
(v) The Fund has full power and authority to enter into each
of this Underwriting Agreement, the Investment Management Agreement, the
Custody Agreement the Transfer Agency Agreement, the Expense Reimbursement
Agreement and the Deferred Compensation Plan (collectively, the "Fund
Agreements") and to perform all of the terms and provisions hereof and
thereof to be carried out by it and (A) each Fund Agreement has been duly
and validly authorized, executed and delivered by or on behalf of the Fund,
(B) each Fund Agreement does not violate in any material respect any of the
applicable provisions of the Investment Company Act, the Investment
Advisers Act of 1940 (the "Advisers Act"), the Investment Company Act Rules
and the rules and regulations adopted by the Commission under the Advisers
Act (the "Advisers Act Rules"), as the case may be, and (C) assuming due
authorization, execution and delivery by the other parties thereto, each
Fund Agreement constitutes the legal, valid and binding obligation of the
Fund enforceable in accordance with its terms, (1) subject, as to
enforcement, to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and to general equitable principles
(regardless of whether enforcement is sought in a proceeding in equity or
at law) and (2) with respect to this Underwriting Agreement, except
7
as rights to indemnity thereunder may be limited by federal or state
securities laws.
(vi) None of (A) the execution and delivery by the Fund of
the Fund Agreements, (B) the issue and sale by the Fund of the Shares as
contemplated by this Underwriting Agreement and (C) the performance by the
Fund of its obligations under any of the Fund Agreements or consummation by
the Fund of the other transactions contemplated by the Fund Agreements
conflicts with 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 agreement or
instrument to which the Fund is a party or by which the Fund is bound, or
any law, rule or regulation, or order of any court, governmental
instrumentality, securities exchange or association or arbitrator, whether
foreign or domestic, applicable to the Fund, other than state securities or
"blue sky" laws applicable in connection with the purchase and distribution
of the Shares by the Underwriters pursuant to this Underwriting Agreement.
(vii) The Fund is not currently in breach of, or in default
under, any written agreement or instrument to which it is a party or by
which it or its property is bound or affected.
(viii) No person has any right to the registration of any
securities of the Fund because of the filing of the registration statement.
(ix) No consent, approval, authorization or order of any
court or governmental agency or body or securities exchange or association,
whether foreign or domestic, is required by the Fund for the consummation
by the Fund of the transactions to be performed by the Fund or the
performance by the Fund of all the terms and provisions to be performed by
or on behalf of it in each case as contemplated in the Fund Agreements,
except such as (A) have been obtained under the Securities Act, the
Investment Company Act, the Advisers Act, the Securities Act Rules, the
Investment Company Act Rules, and the Advisers Act Rules, and (B) may be
required by the New York Stock Exchange or under state securities or "blue
sky" laws, in connection with the purchase and distribution of the Shares
by the Underwriters pursuant to this Underwriting Agreement.
8
(x) The Shares are duly authorized for listing, subject to
official notice of issuance, on the New York Stock Exchange and the Fund's
Registration Statement on Form 8-A, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), has become effective.
(xi) KPMG LLP, whose report appears in the Prospectus, are
independent public accountants with respect to the Fund as required by the
Securities Act, the Investment Company Act, the Securities Act Rules and
the Investment Company Act Rules.
(xii) The statement of assets and liabilities included in
the Registration Statement and the Prospectus presents fairly in all
material respects, in accordance with generally accepted accounting
principles in the United States applied on a consistent basis, the
financial position of the Fund as of the date indicated.
(xiii) The Fund will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management's general or
specific authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(C) access to assets is permitted only in accordance with management's
general or specific authorization; and (D) the recorded accountability for
assets is compared with existing assets through an asset reconciliation
procedure or otherwise at reasonable intervals and appropriate action is
taken with respect to any differences.
(xiv) Since the date as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, business affairs or business of the Fund, whether
or not arising in the ordinary course of business, (B) there have been no
transactions entered into by the Fund other than those in the ordinary
course of its business and (C) there has been no dividend or distribution
of any kind declared, paid or made on any class of its capital shares.
9
(xv) There is no action, suit or proceeding before or by any
court, commission, regulatory body, administrative agency or other
governmental agency or body, foreign or domestic, now pending, or, to the
knowledge of the Fund, threatened against or affecting the Fund, which (A)
might result in any material adverse change in the condition, financial or
otherwise, business affairs or business prospects of the Fund or might
materially adversely affect the properties or assets of the Fund or (B) is
of a character required to be described in the Registration Statement or
the Prospectus; and there are no contracts, franchises or other documents
that are of a character required to be described in, or that are required
to be filed as exhibits to, the Registration Statement that have not been
described or filed as required.
(xvi) Except for stabilization transactions conducted by the
Underwriters, and except for tender offers, Share repurchases and the
issuance or purchase of Shares pursuant to the Fund's dividend investment
plan (the "Dividend Investment Plan") effected following the date on which
the distribution of the Shares is completed in accordance with the policies
of the Fund as set forth in the Prospectus, the Fund has not taken and will
not take, directly or indirectly, any action designed or which might be
reasonably expected to cause or result in, or which will constitute,
stabilization or manipulation of the price of the Shares of Beneficial
Interest in violation of applicable federal securities laws.
(xvii) The Fund intends to direct the investment of the
proceeds of the offering of the Shares in such a manner as to comply with
the requirements of Subchapter M of the Internal Revenue Code of 1986, as
amended (the "Code").
(xviii) To the knowledge of the Fund after due inquiry, no
advertising, sales literature or other promotional materials (excluding
road show slides or road show tapes) were authorized or prepared by or on
behalf of the Fund and the Investment Adviser or any representative thereof
for use in connection with the public offering or sale of the Shares other
than the (A) client brochure, (B) the adviser brochure, (C) the adviser
fact card, (D) the announcement card, (E) the mailing cover letter and (F)
the prospecting letter, drafts of each of which were filed with the NASD on
September 3, 1999 and September
10
14, 1999, and final forms of which were filed with the NASD on September
__, 1999 (collectively, the "sales materials"); the sales materials and any
road show slides or road show tapes complied and comply in all material
respects with the applicable requirements of the Securities Act, the
Securities Act Rules and the rules and interpretations of the NASD; and no
broker kits, road show slides, road show tapes or sales materials
authorized or prepared by the Fund or authorized or prepared on behalf of
the Fund by the Investment Adviser or any representative thereof for use in
connection with the public offering or sale of the Shares contained or
contains any untrue statement of a material fact or omitted or omits to
state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading.
(b) Each of the Investment Adviser and Nuveen jointly and
severally represents to each Underwriter as follows:
(i) The Investment Adviser has been duly formed, is validly
existing as a corporation under the laws of Delaware with full power and
authority to conduct all of the activities conducted by it, to own or lease
all of the assets owned or leased by it and to conduct its business as
described in the Registration Statement and Prospectus, and the Investment
Adviser is duly licensed and qualified to do business and in good standing
in each jurisdiction in which it is required to be so qualified, except to
the extent that failure to be so qualified or be in good standing would not
have a material adverse affect on the Investment Adviser; and the
Investment Adviser owns, possesses or has obtained and currently maintains
all governmental licenses, permits, consents, orders, approvals and other
authorizations, whether foreign or domestic, necessary to carry on its
business as contemplated in the Registration Statement and the Prospectus.
(ii) The Investment Adviser is (A) duly registered as an
investment adviser under the Advisers Act and (B) not prohibited by the
Advisers Act, the Investment Company Act, the Advisers Act Rules or the
Investment Company Act Rules from acting as the investment adviser for the
Fund as contemplated by the Investment Advisory Agreement, the
Registration Statement and the Prospectus.
11
(iii) The Investment Adviser has full power and authority to
enter into each of this Underwriting Agreement, the Investment Management
Agreement and the Expense Reimbursement Agreement (together, this
Underwriting Agreement, the Investment Management Agreement and the Expense
Reimbursement Agreement being referred to as the "Investment Adviser
Agreements") and to carry out all the terms and provisions hereof and
thereof to be carried out by it; and each Investment Adviser Agreement has
been duly and validly authorized, executed and delivered by the Investment
Adviser; none of the Investment Adviser Agreements violate in any material
respect any of the applicable provisions of the Investment Company Act, the
Advisers Act, the Investment Company Act Rules and the Advisers Act Rules;
and assuming due authorization, execution and delivery by the other parties
thereto, each Investment Adviser Agreement constitutes a legal, valid and
binding obligation of the Investment Adviser, enforceable in accordance
with its terms, (1) subject, as to enforcement, to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and to
general equitable principles (regardless of whether enforcement is sought
in a proceeding in equity or at law) and (2) with respect to this
Underwriting Agreement, except as rights to indemnity thereunder may be
limited by federal or state securities laws.
(iv) Neither (A) the execution and delivery by the
Investment Adviser of any Investment Adviser Agreement by the Investment
Adviser nor (B) the consummation by the Investment Adviser of the
transactions contemplated by, or the performance of its obligations under
any Investment Adviser Agreement conflicts or will conflict with, or
results or will result in a breach of, the Agreement and Declaration of
Fund or By-Laws of the Investment Adviser or any agreement or instrument to
which the Investment Adviser is a party or by which the Investment Adviser
is bound, or any law, rule or regulation, or order of any court,
governmental instrumentality, securities exchange or association or
arbitrator, whether foreign or domestic, applicable to the Investment
Adviser.
(v) No consent, approval, authorization or order of any
court, governmental agency or body or securities exchange or association,
whether foreign or domestic, is required for the consummation of the
transactions contemplated in, or the performance by the
12
Investment Adviser of its obligations under, any Investment Adviser
Agreement, as the case may be, except such as (A) have been obtained under
the Investment Company Act, the Advisers Act, the Securities Act, the
Investment Company Act Rules, the Advisers Act Rules and the Securities Act
Rules, and (B) may be required by the New York Stock Exchange or under
state securities or "blue sky" laws, in connection with the purchase and
distribution of the Shares by the Underwriters pursuant to this
Underwriting Agreement.
(vi) The description of the Investment Adviser and its
business, and the statements attributable to the Investment Adviser, in the
Registration Statement and the Prospectus complies with the requirements of
the Securities Act, the Investment Company Act, the Securities Act Rules
and the Investment Company Act Rules and does 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.
(vii) There is no action, suit or proceeding before or by
any court, commission, regulatory body, administrative agency or other
governmental agency or body, foreign or domestic, now pending or, to the
knowledge of the Investment Adviser, threatened against or affecting the
Investment Adviser of a nature required to be disclosed in the Registration
Statement or Prospectus or that might reasonably be expected to result in
any material adverse change in the condition, financial or otherwise,
business affairs or business prospects of the Investment Adviser or the
ability of the Investment Adviser to fulfill its respective obligations
under any Investment Adviser Agreement.
(viii) Except for stabilization activities conducted by the
Underwriters and except for tender offers, Share repurchases and the
issuance or purchase of Shares pursuant to the Fund's Dividend Investment
Plan effected following the date on which the distribution of the Shares is
completed in accordance with the policies of the Fund as set forth in the
Prospectus, the Investment Adviser has not taken and will not take,
directly or indirectly, any action designed, or which might reasonably be
expected to cause or result in, or which will constitute, stabilization or
manipulation of the price of the Shares of Beneficial Interest in violation
of applicable federal securities laws.
13
(ix) In the event that the Fund or the Investment Adviser
makes available any promotional materials (other than the sales materials)
intended for use only by qualified broker-dealers and registered
representatives thereof by means of an Internet web site or similar
electronic means, the Investment Adviser will install and maintain pre-
qualification and password-protection or similar procedures which will
effectively prohibit access to such promotional materials by persons other
than qualified broker-dealers and registered representatives thereof.
5. Agreements of the Parties.
(a) If the registration statement relating to the Shares has not
yet become effective, the Fund will promptly file the Final Amendment, if not
previously filed, with the Commission, and will use its best efforts to cause
such registration statement to become effective and, as soon as the Fund is
advised, will advise the Representatives when the Registration Statement or any
amendment thereto has become effective. If the Registration Statement has become
effective and the Prospectus contained therein omits certain information at the
time of effectiveness pursuant to Rule 430A of the Securities Act Rules, the
Fund will file a 430A Prospectus pursuant to Rule 497(h) of the Securities Act
Rules as promptly as practicable, but no later than the second business day
following the earlier of the date of the determination of the offering price of
the Shares or the date the Prospectus is first used after the Effective Date. If
the Registration Statement has become effective and the Prospectus contained
therein does not so omit such information, the Fund will file a Prospectus
pursuant to Rule 497(b) or (j) of the Securities Act Rules as promptly as
practicable, but no later than the fifth business day following the date of the
later of the Effective Date or the commencement of the public offering of the
Shares after the Effective Date. In either case, the Fund will provide the
Representatives satisfactory evidence of the filing. The Fund will not file with
the Commission any Prospectus or any other amendment (except any post-effective
amendment which is filed with the Commission after the later of (x) one year
from the date of this Underwriting Agreement or (y) the date on which
distribution of the Shares is completed) or supplement to the Registration
Statement or the Prospectus unless a copy has first been submitted to the
Managing Representative a reasonable time before its filing and the Managing
Representative has not objected to it in writing within a reasonable time after
receiving the copy.
14
(b) For the period of three years from the date hereof, the Fund
will advise the Representatives promptly (1) of the issuance by the Commission
of any order in respect of the Fund or the Investment Adviser which relates to
the Fund, or which relates to any material arrangements or proposed material
arrangements involving the Fund or the Investment Adviser, (2) of the initiation
or threatening of any proceedings for, or receipt by the Fund of any notice with
respect to, the suspension of the qualification of the Shares for sale in any
jurisdiction or the issuance of any order by the Commission suspending the
effectiveness of the Registration Statement, (3) of receipt by the Fund, or any
representative or attorney of the Fund, of any other communication from the
Commission relating in any material way to the Fund, the Registration Statement,
the Notification, any Preliminary Prospectus, the Prospectus or to the
transactions contemplated by this Underwriting Agreement and (4) the issuance by
any court, regulatory body, administrative agency or other governmental agency
or body, whether foreign or domestic, of any order, ruling or decree, or the
threat to initiate any proceedings with respect thereto, regarding the Fund,
which relates in any material way to the Fund or any material arrangements or
proposed material arrangements involving the Fund. The Fund will make every
reasonable effort to prevent the issuance of any order suspending the
effectiveness of the Registration Statement and, if any such order is issued, to
obtain its lifting as soon as possible.
(c) If not delivered prior to the date of this Underwriting
Agreement, the Fund will deliver to the Representatives, without charge, a
signed copy of the registration statement and the Notification and of any
amendments (except any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of this Underwriting
Agreement or (y) the date on which the distribution of the Shares is completed)
to either the Registration Statement or the Notification (including all exhibits
filed with any such document) and as many conformed copies of the registration
statement and any amendments thereto (except any post-effective amendment which
is filed with the Commission after the later of (x) one year from the date of
this Underwriting Agreement or (y) the date on which the distribution of the
Shares is completed) (excluding exhibits) as the Representatives may reasonably
request.
(d) During such period as a prospectus is required by law to be
delivered by an underwriter or a dealer, the Fund will deliver, without charge,
to the Representatives, the Underwriters and any dealers, at such office or
offices as the Representatives may designate, as many copies of the Prospectus
as the Representatives may reasonably request, and, if any event occurs during
such period as a result of which it is necessary to amend or supplement the
Prospectus, in order to make the statements
15
therein, in light of the circumstances existing when such Prospectus is
delivered to a purchaser of Shares, not misleading in any material respect, or
if during such period it is necessary to amend or supplement the Prospectus to
comply with the Securities Act, the Investment Company Act, the Securities Act
Rules or the Investment Company Act Rules, the Fund promptly will prepare,
submit to the Managing Representative, file with the Commission and deliver,
without charge, to the Underwriters and to dealers (whose names and addresses
the Representatives will furnish to the Fund) to whom Shares may have been sold
by the Underwriters, and to other dealers on request, amendments or supplements
to the Prospectus so that the statements in such Prospectus, as so amended or
supplemented, will not, in light of the circumstances existing when such
Prospectus is delivered to a purchaser, be misleading in any material respect
and will comply with the Securities Act, the Investment Company Act, the
Securities Act Rules and the Investment Company Act Rules. Delivery by the
Underwriters of any such amendments or supplements to the Prospectus will not
constitute a waiver of any of the conditions in Section 6 hereof.
(e) The Fund will make generally available to holders of the
Fund's securities, as soon as practicable but in no event later than the last
day of the 18th full calendar month following the calendar quarter in which the
Effective Date falls, an earnings statement, if applicable, satisfying the
provisions of Section 11(a) of the Securities Act and, at the option of the
Fund, Rule 158 of the Securities Act Rules.
(f) The Fund will take such actions as the Representatives
reasonably requests in order to qualify the Shares for offer and sale under the
securities or "blue sky" laws of such jurisdictions as the Representatives
reasonably designate; provided that the Fund shall not be required in connection
therewith or as a condition thereof to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction.
(g) If the transactions contemplated by this Underwriting
Agreement are consummated, the Fund shall pay all costs and expenses incident to
the performance of the obligations of the Fund under this Underwriting Agreement
(to the extent such expenses do not, in the aggregate, exceed $0.01 per Share),
including but not limited to costs and expenses of or relating to (1) the fees,
disbursements and expenses of the Fund's counsel and accountants in connection
with the registration of the Shares and all other expenses in connection with
the preparation, printing and filing of the registration statement and exhibits
to it, each Preliminary Prospectus, the Prospectus and all amendments and
supplements thereto, (2) the issuance of the Shares and the preparation and
delivery of certificates for the Shares, (3) the registration or
16
qualification of the Shares for offer and sale under the securities or "blue
sky" laws of the jurisdictions referred to in the foregoing paragraph, including
the fees and disbursements of counsel for the Underwriters in that connection,
and the preparation and printing of preliminary and supplemental "blue sky"
memoranda, (4) the furnishing (including costs of design, production, shipping
and mailing) to the Underwriters and dealers of copies of each Preliminary
Prospectus relating to the Shares, the sales materials, the Prospectus, and all
amendments or supplements to the Prospectus, and of the other documents required
by this Section to be so furnished, (5) the filing requirements of the National
Association of Securities Dealers, Inc., in connection with its review of the
financing, including filing fees and the fees, disbursements and other charges
of counsel for the Underwriters in that connection, (6) all transfer taxes, if
any, with respect to the sale and delivery of the Shares to the Underwriters,
(7) the listing of the Shares on the New York Stock Exchange and (8) the
transfer agent for the Shares. To the extent the foregoing costs and expenses
incident to the performance of the obligations of the Fund under this
Underwriting Agreement exceed, in the aggregate, $0.01 per Share the Nuveen will
pay all such excess costs and expenses.
(h) If the transactions contemplated by this Underwriting
Agreement are not consummated, except as otherwise provided herein, no party
will be under any liability to any other party, except that (1) if this
Underwriting Agreement is terminated by (x) the Fund or the Investment Adviser
pursuant to any of the provisions hereof (otherwise than pursuant to Section 8
hereof) or (y) by the Representatives or the Underwriters because of any
inability, failure or refusal on the part of the Fund or the Investment Adviser
to comply with any material terms or because any of the conditions in Section 6
are not satisfied, the Investment Adviser, Nuveen and the Fund, jointly and
severally, will reimburse the Underwriters for all out-of-pocket expenses
(including the reasonable fees, disbursements and other charges of their
counsel) reasonably incurred by them in connection with the proposed purchase
and sale of the Shares and (2) no Underwriter who has failed or refused to
purchase the Shares agreed to be purchased by it under this Underwriting
Agreement, in breach of its obligations pursuant to this Underwriting Agreement,
will be relieved of liability to the Fund and the Investment Adviser and the
other Underwriters for damages occasioned by its default.
(i) Without the prior written consent of the Managing
Representatives the Fund will not offer, sell or register with the Commission,
or announce an offering of, any equity securities of the Fund, within 180 days
after the Effective Date, except for the Shares as described in the Prospectus
and any issuances of Shares of Beneficial Interest pursuant to the dividend
reinvestment plan established by the Fund
17
and except in connection with any offering of preferred shares of beneficial
interest as contemplated by the Prospectus.
(j) The Fund will use its best efforts to list the Shares on the
New York Stock Exchange and comply with the rules and regulations of such
exchange.
(k) The Fund will direct the investment of the net proceeds of
the offering of the Shares in such a manner as to comply with the investment
objective and policies of the Fund as described in the Prospectus.
6. Conditions of the Underwriters' Obligations. The obligations of
the Underwriters to purchase the Shares are subject to the accuracy on the date
of this Underwriting Agreement, and on the Closing Dates, of the representations
of the Fund, the Investment Adviser and Nuveen in this Underwriting Agreement,
to the accuracy and completeness of all statements made by the Fund or the
Investment Adviser or any of their respective officers in any certificate
delivered to the Representatives or their counsel pursuant to this Underwriting
Agreement, to performance by the Fund and the Investment Adviser of their
respective obligations under this Underwriting Agreement and to each of the
following additional conditions:
(a) The registration statement must have become effective by 5:30
p.m., New York City time, on the date of this Underwriting Agreement or such
later date and time as the Managing Representative consents to in writing. The
Prospectus must have been filed in accordance with Rule 497(b), (h) or (j), as
the case may be, of the Securities Act Rules.
(b) No order suspending the effectiveness of the Registration
Statement may be in effect and no proceedings for such purpose may be pending
before or, to the knowledge of counsel to the Underwriters, threatened by the
Commission, and any requests for additional information on the part of the
Commission (to be included in the Registration Statement or the Prospectus or
otherwise) must be complied with or waived to the reasonable satisfaction of the
Managing Representative.
(c) Since the dates as of which information is given in the
Registration Statement and the Prospectus, (1) there must not have been any
material change in the Shares of Beneficial Interest or liabilities of the Fund
except as set forth in or contemplated by the Prospectus; (2) there must not
have been any material adverse change in the general affairs, prospects,
management, business, financial condition or results of operations of the Fund
or the Investment Adviser whether or not arising from
18
transactions in the ordinary course of business as set forth in or contemplated
by the Prospectus; (3) the Fund must not have sustained any material loss or
interference with its business from any court or from legislative or other
governmental action, order or decree, whether foreign or domestic, or from any
other occurrence not described in the Registration Statement and Prospectus; and
(4) there must not have occurred any event that makes untrue or incorrect in any
material respect any statement or information contained in the Registration
Statement or Prospectus or that is not reflected in the Registration Statement
or Prospectus but should be reflected therein in order to make the statements or
information therein (in the case of the Prospectus, in light of the
circumstances in which they were made) not misleading in any material respect;
if, in the judgment of the Managing Representative, any such development
referred to in clause (1), (2), (3) or (4) of this paragraph (c) makes it
impracticable or inadvisable to consummate the sale and delivery of the Shares
pursuant to this Underwriting Agreement by the Underwriters, at the initial
public offering price of the Shares.
(d) The Representatives must have received on each Closing Date a
certificate, dated such date, of the President or a Vice-President and the
chief financial or accounting officer of each of the Fund and the Investment
Adviser certifying that (1) the signers have carefully examined the Registration
Statement, the Prospectus, and this Underwriting Agreement, (2) the
representations of the Fund (with respect to the certificates from such Fund
officers) and the representations of the Investment Adviser (with respect to the
certificates from such officers of the Investment Adviser) in this Underwriting
Agreement are accurate on and as of the date of the certificate, (3) there has
not been any material adverse change in the general affairs, prospects,
management, business, financial condition or results of operations of the Fund
(with respect to the certificates from such Fund officers) or the Investment
Adviser (with respect to the certificates from such officers of the Investment
Adviser), which change would materially and adversely affect the ability of the
Fund or the Investment Adviser, as the case may be, to fulfill its obligations
under this Underwriting Agreement or the Investment Advisory Agreement, whether
or not arising from transactions in the ordinary course of business, (4) with
respect to the Fund only, to the knowledge of such officers after reasonable
investigation, no order suspending the effectiveness of the Registration
Statement, prohibiting the sale of any of the Shares or otherwise having a
material adverse effect on the Fund has been issued and no proceedings for any
such purpose are pending before or threatened by the Commission or any other
regulatory body, whether foreign or domestic, (5) to the knowledge of the
officers of the Investment Adviser, after reasonable investigation, no order
having a material adverse effect on the ability of the Investment Adviser to
fulfill its obligations under this Underwriting Agreement or the Investment
Advisory Agreement, as the case may be,
19
has been issued and no proceedings for any such purpose are pending before or
threatened by the Commission or any other regulatory body, whether foreign or
domestic, and (6) each of the Fund (with respect to the certificates from such
Fund officers) and the Investment Adviser (with respect to the certificates from
such officers of the Investment Adviser) has performed all of its respective
agreements that this Underwriting Agreement requires it to perform by such
Closing Date (to the extent not waived in writing by the Managing
Representative).
(e) The Representatives must receive on each Closing Date the
opinions dated such Closing Date substantially in the form of Annexes A and B to
this Underwriting Agreement from the counsel identified in each such Annex.
(f) The Representatives must receive on each Closing Date from
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and its affiliated entities, its
counsel, an opinion dated such Closing Date with respect to the Fund, the
Shares, the Registration Statement and the Prospectus, this Underwriting
Agreement and the form and sufficiency of all proceedings taken in connection
with the sale and delivery of the Shares. Such opinion and proceedings shall
fulfill the requirements of this Section 6(f) only if such opinion and
proceedings are satisfactory in all respects to the Representatives. The Fund
and the Investment Adviser must have furnished to such counsel such documents as
counsel may reasonably request for the purpose of enabling them to render such
opinion.
(g) The Representatives must receive on the date this
Underwriting Agreement is signed and delivered by the Representatives a signed
letter, dated such date, substantially in the form of Annex C to this
Underwriting Agreement from the firm of accountants designated in such Annex.
The Representatives also must receive on each Closing Date a signed letter from
such accountants, dated as of such Closing Date, confirming on the basis of a
review in accordance with the procedures set forth in their earlier letter that
nothing has come to their attention during the period from a date not more than
five business days before the date of this Underwriting Agreement, specified in
the letter, to a date not more than five business days before such Closing Date,
that would require any change in their letter referred to in the foregoing
sentence.
All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Underwriting Agreement will comply only if they are in form
and scope reasonably satisfactory to counsel for the Underwriters, provided that
any such documents, forms of which are annexed hereto, shall be deemed
satisfactory to such counsel if substantially in such form.
20
7. Indemnification and Contribution.
(a) Each of the Fund, the Investment Adviser and Nuveen, jointly
and severally, will indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of such Underwriter and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act from and against any and all losses, claims,
liabilities, expenses and damages (including, but not limited to, any and all
investigative, legal and other expenses reasonably incurred in connection with,
and any and all amounts paid in settlement of, any action, suit or proceeding
between any of the indemnified parties and any indemnifying parties or between
any indemnified party and any third party, or otherwise, or any claim asserted),
to which such Underwriter or any such person, or any of them, may become subject
under the Securities Act, the Exchange Act, the Investment Company Act, the
Advisers Act or other federal or state statutory law or regulation, at common
law or otherwise, whether foreign or domestic, insofar as such losses, claims,
liabilities, expenses or damages arise out of or are based on (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Preliminary Prospectus, the Prospectus, the sales
materials, or any amendment or supplement to the Registration Statement, the
Preliminary Prospectus, the Prospectus, the sales materials or in any documents
filed under the Exchange Act and deemed to be incorporated by reference into the
Registration Statement, the Preliminary Prospectus, the Prospectus, or in any
application or other document executed by or on behalf of the Fund or based on
written information furnished by or on behalf of the Fund filed in any
jurisdiction in order to qualify the Shares under the securities laws thereof or
filed with the Commission, (ii) the omission or alleged omission to state, in
any or all such documents, a material fact required to be stated therein or
necessary to make the statements therein not misleading or (iii) any act or
failure to act or any alleged act or failure to act by such Underwriter in
connection with, or relating in any manner to, the Shares or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, liability, expense or damage arising out of or based upon matters
covered by clause (i) or (ii) above (provided, however, that none of the Fund,
the Investment Adviser nor Nuveen shall be liable under this clause (iii) to the
extent it is finally judicially determined by a court of competent jurisdiction
that such loss, claim, liability, expense or damage resulted directly from any
such acts or failures to act undertaken or omitted to be taken by such
Underwriter through its gross negligence, bad faith or willful misconduct);
provided that none of the Fund, the Investment Adviser or Nuveen will be liable
to the extent that such losses, claims, liabilities, expenses or damages are
based on an untrue statement or omission or alleged untrue statement or omission
made in reliance on and in
21
conformity with information relating to any underwriter furnished in writing to
the Fund by the Representatives on behalf of Underwriters expressly for
inclusion in the Registration Statement, the Preliminary Prospectus or the
Prospectus. This indemnity agreement will be in addition to any liability that
the Fund, the Investment Adviser and Nuveen might otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Fund
and the Investment Adviser, each person, if any, who controls the Fund or the
Investment Adviser within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, each trustee of the Fund and each officer of the
Fund who signs the Registration Statement to the same extent as the foregoing
indemnity from the Fund or the Investment Adviser to the Underwriter, but only
insofar as losses, claims, liabilities, expenses or damages arise out of or are
based on any untrue statement or omission or alleged untrue statement or
omission of a material fact made in reliance on and in conformity with
information relating to such Underwriter furnished in writing to the Fund by
such Underwriter expressly for use in the Registration Statement, the
Preliminary Prospectus or Prospectus. This indemnity will be in addition to any
liability that such Underwriter might otherwise have; provided, however, that in
no case shall such Underwriter be liable or responsible for any amount in excess
of the fees and commissions received by such Underwriter.
(c) Any party that proposes to assert the right to be indemnified
under this Section 7 will, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 7, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission to so notify such indemnifying party will not
relieve it from any liability that it may have to any indemnified party under
the foregoing provision of this Section 7 unless, and only to the extent that,
such omission results in the forfeiture of substantive rights or defenses by the
indemnifying party. If any such action is brought against any indemnified party
and it notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects by
delivering written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel reasonably satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently in-
22
curred by the indemnified party in connection with the defense. The indemnified
party will have the right to employ its own counsel in any such action, but the
fees, disbursements and other charges of such counsel will be at the expense of
such indemnified party unless (1) the employment of counsel by the indemnified
party has been authorized in writing by the indemnifying party, (2) the
indemnified party has reasonably concluded (based on the advice of counsel) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party
(3) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. Subject to the requirements of
Investment Company Act Release No. 11330, all such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are
incurred. It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm (in addition to local counsel) admitted to practice in such
jurisdiction at any one time for all such indemnified party or parties. An
indemnifying party will not be liable for any settlement of any action or claim
effected without its written consent (which consent will not be unreasonably
withheld). No indemnifying party shall, without the prior written consent of
each indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding relating to
the matters contemplated by this Section 7 (whether or not any indemnified party
is a party thereto), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising or
that may arise out of such claim, action or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7 is
applicable but for any reason is held to be unavailable from the Fund, the
Investment Adviser, Nuveen or the Underwriters, the Fund, the Investment
Adviser, Nuveen and the Underwriters will contribute to the total losses,
claims, liabilities, expenses and damages (including any investigative, legal
and other expenses reasonably incurred in connection with, and any amount paid
in settlement of, any action, suit or proceeding or any claim
23
asserted, but after deducting any contribution received by the Fund, the
Investment Adviser and Nuveen from persons other than the Underwriter, such as
persons who control the Fund, the Investment Adviser and Nuveen within the
meaning of the Securities Act or the Exchange Act, officers of the Fund who
signed the Registration Statement and directors of the Fund, who may also be
liable for contribution) to which the Fund, the Investment Adviser, Nuveen and
the Underwriters may be subject in such proportion as shall be appropriate to
reflect the relative benefits received by the Fund, the Investment Adviser and
Nuveen on the one hand and the Underwriters on the other. The relative benefits
received by the Fund, the Investment Adviser and Nuveen (treated jointly for
this purpose as one person) on the one hand and the Underwriters on the other
hand shall be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Fund bear to the total
fees and commissions received by the Underwriters. If, but only if, the
allocation provided by the foregoing sentence is not permitted by applicable
law, the allocation of contribution shall be made in such proportion as is
appropriate to reflect not only such relative benefits referred to in the
foregoing sentence but also the relative fault of the Fund, the Investment
Adviser and Nuveen (treated jointly for this purpose as one person) on the one
hand and the Underwriters on the other hand in connection with respect to the
statements or omissions or alleged statements or omissions that resulted in the
losses, claims, liabilities, expenses or damages (including any investigative,
legal or other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim asserted), as
well as any other relevant equitable considerations appropriate in the
circumstances. Such relative fault of the parties shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Fund, the Investment Adviser, Nuveen or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission and
any other equitable considerations appropriate in the circumstances. The Fund,
the Investment Adviser, Nuveen and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 7(d) were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
liability, expense or damage, or action in respect thereof, referred to above
in this Section 7(d) shall be deemed to include, for purposes of this Section
7(d) any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding any other provisions of this Section 7(d), the Underwriters
shall not be required to contribute any amount in excess of the fees and
commissions received by it and no person found guilty
24
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7(d),
any person who controls a party to this Agreement within the meaning of the
Securities Act will have the same rights to contribution as that party, and each
trustee of the Fund and each officer of the Fund who signed the Registration
Statement will have the same rights to contribution as the Fund, subject in each
case to the provisions hereof. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action against such party in
respect of which a claim for contribution may be made under this Section 7(d),
notify such party or parties from whom contribution may be sought, but the
omission so to notify will not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have under
this Section 7(d). No party will be liable for contribution with respect to any
action or claim settled without its written consent (which consent shall not be
unreasonably withheld). The Underwriter's obligations to contribute pursuant to
this Section 7 are several in proportion to the respective number of Firm Shares
set forth opposite their names in Schedule 1 (or such number of Firm Shares as
determined pursuant to Section 9 hereof) and not joint.
(e) Notwithstanding any other provisions in this Section 7, no
party shall be entitled to indemnification or contribution under this Agreement
against any loss, claim, liability, expense or damage arising by reason of such
person's willful misfeasance, bad faith or gross negligence in the performance
of its duties hereunder, or by reason of such person's reckless disregard of
such person's obligations and duties hereunder.
(f) The Fund, the Investment Adviser and Nuveen acknowledge that
the statements with respect to (1) the public offering of the Shares as set
forth on the cover page of and (2) the first two sentences of the third
paragraph under the caption "Underwriting" in the Prospectus constitute the only
information furnished in writing to the Fund by the Representatives on behalf of
the Underwriters expressly for use in such document. The Underwriters severally
confirm that these statements are correct in all material respects and were so
furnished by or on behalf of the Underwriters severally for use in the
Prospectus.
8. Termination. This Underwriting Agreement may be terminated by
the Managing Representative by notifying the Fund at any time:
(a) before the later of the effectiveness of the Registration
Statement and the time when any of the Shares are first generally offered
pursuant to
25
this Underwriting Agreement by the Managing Representative to dealers by letter
or telegram;
(b) at or before any Closing Date if, in the sole judgment of the
Managing Representative, payment for and delivery of any Shares is rendered
impracticable or inadvisable because (1) trading in the equity securities of the
Fund is suspended by the Commission or by the principal exchange that lists the
Shares, (2) trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq Stock Market shall have been suspended or
limited or minimum or maximum prices shall have been generally established on
such exchange or over-the-counter market, or, (4) additional material
governmental restrictions, not in force on the date of this Underwriting
Agreement, have been imposed upon trading in securities or trading has been
suspended on any U.S. securities exchange, (5) a general banking moratorium has
been established by U.S. federal or New York authorities or (6) any material
adverse change in the financial or securities markets in the United States or in
political, financial or economic conditions in the United States or any outbreak
or material escalation of hostilities or declaration by the United States of a
national emergency or war or other calamity or crisis shall have occurred the
effect of any of which is such as to make it, in the sole judgement of the
Managing Representative, impracticable or inadvisable to market the Shares on
the terms and in the manner contemplated by the Prospectus; or
(c) at or before any Closing Date, if any of the conditions
specified in Section 6 have not been fulfilled when and as required by this
Underwriting Agreement.
9. Substitution of Underwriters. If one or more of the Underwriters
fails (other than for a reason sufficient to justify the termination of this
Underwriting Agreement) to purchase on any Closing Date the Shares agreed to be
purchased on such Closing Date by such Underwriter or Underwriters, the Managing
Representative may find one or more substitute underwriters to purchase such
Shares or make such other arrangements as the Managing Representative deems
advisable, or one or more of the remaining Underwriters may agree to purchase
such Shares in such proportions as may be approved by the Managing
Representative, in each case upon the terms set forth in this Underwriting
Agreement. If no such arrangements have been made within 36 hours after such
Closing Date, and
(a) the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date does not exceed 10% of the Shares that the
26
Underwriters are obligated to purchase on such Closing Date, each of the
nondefaulting Underwriters will be obligated to purchase such Shares on the
terms set forth in this Underwriting Agreement in proportion to their respective
obligations under this Underwriting Agreement, or
(b) the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date exceeds 10% of the Shares to be purchased by
all the Underwriters on such Closing Date, the Fund will be entitled to an
additional period of 24 hours within which to find one or more substitute
underwriters reasonably satisfactory to the Managing Representative to purchase
such Shares on the terms set forth in this Underwriting Agreement.
In any such case, either the Managing Representative or the Fund will
have the right to postpone the applicable Closing Date for not more than five
business days in order that necessary changes and arrangements (including any
necessary amendments or supplements to the Registration Statement or the
Prospectus) may be effected by the Managing Representative and the Fund. If the
number of Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters exceeds 10% of the Shares that the Underwriters are
obligated to purchase on such Closing Date, and none of the nondefaulting
Underwriters or the Fund makes arrangements pursuant to this Section within the
period stated for the purchase of the Shares that the defaulting Underwriters
agreed to purchase, this Underwriting Agreement will terminate without liability
on the part of any nondefaulting Underwriter, the Fund or the Investment
Adviser, except as provided in Sections 5(g) and 7 hereof. This Section will not
affect the liability of any defaulting Underwriter to the Fund or the
nondefaulting Underwriters arising out of such default. A substitute
underwriter will become a Underwriter for all purposes of this Underwriting
Agreement.
10. Miscellaneous.
(a) The reimbursement, indemnification and contribution
agreements in Sections 5(g) and 7 hereof and the representations of the Fund,
the Investment Adviser, Nuveen and the Underwriters in this Underwriting
Agreement will remain in full force and effect regardless of any termination of
this Underwriting Agreement. The reimbursement, indemnification and contribution
agreements in Sections 5(g) and 7 hereof and the representations and agreements
of the Fund, the Investment Adviser, Nuveen and the Underwriters in this
Underwriting Agreement shall survive the Closing Dates and shall remain in full
force and effect regardless of any
27
investigation made by or on behalf of any Underwriter, the Fund, the Investment
Adviser, Nuveen or any controlling person and delivery of and payment for the
Shares.
(b) This Underwriting Agreement is for the benefit of the
Underwriters, the Fund, the Investment Adviser, Nuveen and their successors and
assigns, and, to the extent expressed in this Underwriting Agreement, for the
benefit of persons controlling any of the Underwriters, the Fund, the Investment
Adviser, Nuveen and directors and officers of the Fund, the Investment Adviser
and Nuveen, and their respective successors and assigns, and no other person,
partnership, association or corporation will acquire or have any right under or
by virtue of this Underwriting Agreement. The term "successors and assigns"
does not include any purchaser of the Shares from any Underwriter merely because
of such purchase.
(c) All notices and communications under this Underwriting
Agreement will be in writing, effective only on receipt and mailed or delivered,
by messenger, facsimile transmission or otherwise, to the Representatives in
care of PaineWebber Incorporated, Attn.: Financial Institutions Group, ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, to the Fund or the Investment
Adviser at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn.: Chief Legal
Officer.
(d) This Underwriting Agreement may be signed in multiple
counterparts that taken as a whole constitute one agreement.
(e) This Underwriting Agreement will be governed by and construed
in accordance with the laws of the State of New York without reference to choice
of law principles thereof.
(f) A copy of the Agreement and Declaration of Trust of the Fund
and is on file with the Secretary of The Commonwealth of Massachusetts, and
notice hereby is given that this Underwriting Agreement is executed on behalf of
the respective Trustees of the Fund and the Investment Adviser as Trustees and
not individually and that the obligations or arising out of this Underwriting
Agreement are not binding upon any of the Trustees or beneficiaries individually
but are binding only upon the respective assets and properties of the Fund and
the Investment Adviser.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Fund and the Adviser and of the controlling persons,
directors and officers referred to in Section 7, and their respective successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. The
28
term "successors and assigns" as used in this Agreement shall not include a
purchaser, as such purchaser, of Shares from any of the several Underwriters.
All representations, warranties, and agreements of the Fund and the
Adviser contained herein or in certificates or other instruments delivered
pursuant hereto, shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of any Underwriter or any of its
controlling persons and shall survive delivery of and payment for the Shares
hereunder.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
The Fund, the Adviser and the Underwriters each hereby irrevocably
waive any right they may have to a trial by jury in respect of any claim based
upon or arising out of this Agreement or the transactions contemplated hereby.
This Agreement may not be amended or otherwise modified or any
provision hereof waived except by an instrument in writing signed by the
Managing Representative, the Fund and the Adviser.
29
Please confirm that the foregoing correctly sets forth the agreement
among the Fund, the Adviser, Nuveen and the several Underwriters.
Very truly yours,
Nuveen Senior Income Trust
By:__________________________________________
Name:
Title:
Nuveen Senior Loan Asset Management Inc.
By:__________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
▇▇▇▇ Nuveen & Co. Incorporated
By:__________________________________________
Name:
Title:
Confirmed:
PaineWebber Incorporated
▇▇▇▇ Nuveen & Co. Incorporation
As Representatives of the Underwriters
c/o PaineWebber Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
By: PaineWebber Incorporated
By:_____________________________
Name:
Title:
Acting on behalf of itself
and the Underwriters
named in Schedule 1
SCHEDULE 1
Name Number of Firm Shares
to be Purchased
PaineWebber Incorporated [___]
▇▇▇▇ Nuveen & Co. Incorporated [___]
Total Underwriters (__)