EXHIBIT 3
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MLP INVESTMENT COMPANY
[ ] Shares of Common Stock*
(Par Value $0.001 Per Share)
UNDERWRITING AGREEMENT
New York, New York
[ ], 2004
Citigroup Global Markets Inc.
UBS Securities LLC
As Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MLP Investment Company, a Maryland corporation
(the "Company") and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Capital Advisors, L.P., a California limited
partnership (the "Adviser") address you as underwriters and as the
representatives (the "Representatives") of each of the several underwriters
named on Schedule I hereto (herein collectively called "Underwriters"). The
Company proposes to sell to the Underwriters [ ] shares of Common Stock, par
value $0.001 per share ("Common Stock") of the Company (said shares to be issued
and sold by the Company being hereinafter called the "Underwritten Securities").
The Company also proposes to grant to the Underwriters an option to purchase up
to [ ] additional shares of Common Stock to cover over-allotments (the
"Option Securities"; the Option Securities, together with the Underwritten
Securities, being hereinafter called the "Securities"). Unless otherwise stated,
the term "you" as used herein means each of Citigroup Global Markets Inc. and
UBS Securities LLC individually on its own behalf and on behalf of the other
Underwriters. Certain terms used herein are defined in Section 18 hereof.
The Company and the Adviser wish to confirm as follows their agreements
with you and the other several Underwriters on whose behalf you are acting in
connection with the several purchases of the Securities by the Underwriters.
______________________
* Plus an option to purchase from the Company up to [ ] additional
Securities to cover over-allotments.
The Company has entered into (i) an Investment Management Agreement with
the Adviser, dated as of [ ], 2004; (ii) a Custody Agreement with The
Custodial Trust Company dated as of [ ], 2004; (iii) a Transfer Agency
Agreement with American Stock Transfer & Trust Company dated as of [ ], 2004;
(iv) an Administration Agreement with Bear ▇▇▇▇▇▇▇ Funds Management Inc. dated
as of [ ], 2004; and (v) a Fund Accounting Agreement with Ultimus Fund
Solutions, LLC dated as of [ ], 2004; and such agreements are herein referred
to as the "Advisory Agreement," the "Custodian Agreement," the "Transfer Agency
Agreement," "Administration Agreement" and "Accounting Agreement," respectively.
Collectively, the Advisory Agreement, the Custodian Agreement, the Transfer
Agency Agreement, the Administration Agreement and the Accounting Agreement are
herein referred to as the "Company Agreements." In addition, the Company has
adopted a dividend reinvestment plan (the "Dividend Reinvestment Plan") pursuant
to which the holders of Common Stock shall have their dividends automatically
reinvested in additional Common Stock of the Company unless they elect to
receive such dividends in cash.
1. Representations and Warranties of the Company and the Adviser. The
Company and the Adviser, jointly and severally, represent and warrant to, and
agree with, each Underwriter as set forth below in this Section 1.
(a) The Company has prepared and filed with the Commission a
registration statement (file numbers 333-116479 and 811-21593) on Form
N-2, including a related preliminary prospectus (including the statement
of additional information incorporated by reference therein), for
registration under the Acts of the offering and sale of the Securities.
The Company 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 Company 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 Company has included in such registration statement, as
amended at the Effective Date, all information (other than Rule 430A
Information) required by the Acts 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 Company has advised
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you, prior to the Execution Time, will be included or made therein. The
Company has furnished the Underwriters with copies of such Registration
Statement, each amendment to such Registration Statement filed with the
Commission and each Preliminary Prospectus.
(b) Each Preliminary Prospectus included as part of the Registration
Statement as originally filed or as part of any amendment or supplement
thereto, or filed pursuant to Rule 497, complied when so filed in all
material respects with the provisions of the Acts and the Rules and
Regulations.
(c) 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 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 Acts 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
Company 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 Company 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.
(d) The Company is a corporation duly organized and validly existing
in good standing under the laws of the State of Maryland with full
corporate power and authority to own, lease and operate its properties or
assets and to conduct its business as described in the Registration
Statement and Prospectus, and is duly qualified to conduct business as a
foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification. The Company has no
subsidiaries.
(e) The Company's authorized equity capitalization is as set forth
in the Prospectus; the capital stock of the Company conforms to the
description thereof contained in the Registration Statement and the
Prospectus; all outstanding shares
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of Common Stock have been duly and validly authorized and issued and are
fully paid and nonassessable; the Securities have been duly and validly
authorized, and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be fully paid and
nonassessable; the Securities are duly listed, and admitted and authorized
for trading, subject to official notice of issuance, on the NYSE; the
certificates for the Securities are in valid and sufficient form; the
holders of outstanding shares of Common Stock of the Company 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 Company are outstanding.
(f) The Company's registration statement on Form 8-A under the
Exchange Act has become effective.
(g) The Company, 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 Acts and the Rules and Regulations to
make the public offering and consummate the sale of the Securities as
contemplated by this Agreement.
(h) 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 Acts or the Rules and
Regulations; and the statements in the Prospectus under the headings "Tax
Matters" and "Description of Capital Stock" fairly summarize the matters
therein described.
(i) The execution and delivery of, and the performance by the
Company of its obligations under, this Agreement and the Company
Agreements have been duly and validly authorized by the Company, and this
Agreement and the Company Agreements have been duly executed and delivered
by the Company and constitute the valid and legally binding agreements of
the Company, enforceable against the Company in accordance with their
terms, except as rights to indemnity and contribution hereunder and
thereunder may be limited by federal or state securities laws or
principles of public policy and subject to the qualification that the
enforceability of the Company's obligations hereunder and thereunder may
be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles,
regardless whether enforcement is considered in a proceeding in equity or
at law.
(j) The Company is duly registered under the 1940 Act as a
closed-end, non-diversified management investment company and the 1940 Act
Notification has been duly filed with the Commission and, at the time of
filing thereof and any amendment or supplement thereto, conformed in all
material respects with all
4
applicable provisions of the 1940 Act and the 1940 Rules and Regulations.
The Company is, and at all times through the completion of the
transactions contemplated hereby will be, in compliance in all material
respects with the terms and conditions of the Acts. No person is serving
or acting as an officer, director or investment adviser of the Company
except in accordance with the provisions of the 1940 Act, the 1940 Act
Rules and Regulations, the Advisers Act, and the Advisers Act Rules and
Regulations; the Company 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.
(k) 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 Company Agreements, except such
as have been made or obtained under the Acts 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.
(l) Neither the issuance and sale of the Securities, the execution,
delivery or performance of this Agreement or any of the Company Agreements
by the Company, nor the consummation by the Company of the transactions
herein or therein contemplated (i) conflicts or will conflict with or
constitutes or will constitute a breach of the articles of incorporation
(the "Charter") or bylaws (the "Bylaws") of the Company, (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 Company 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 the Company 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 Company 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 Company is subject.
(m) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(n) 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 Company
as of the dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Acts and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise
noted therein); and the other financial and statistical information and
data included in the Registration Statement and the Prospectus are
accurately derived from such financial statements and the books and
records of the Company.
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(o) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or its property is pending or, to the best knowledge of the
Company, 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 Company, 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).
(p) The Company owns or leases all such properties as are necessary
to the conduct of its operations as presently conducted.
(q) The Company is not (i) in violation of its Charter or Bylaws,
(ii) in breach or default in the performance of the terms of any
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 law, ordinance, administrative or
governmental rule or regulation applicable to the Company 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 Company.
(r) PricewaterhouseCoopers LLP, who have audited the financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus, are an independent registered public
accounting firm with respect to the Company within the meaning of the 1933
Act and the 1933 Act Rules and Regulations.
(s) The Company 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 Acts or the Rules and Regulations.
(t) 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 Company or sale by the Company of
the Securities.
(u) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company, whether or not
arising from transactions in the ordinary course of
6
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto)) and has paid all taxes required to
be paid by it and any other assessment, fine or penalty levied against it,
to the extent that any of the foregoing is due and payable, except for any
such assessment, fine or penalty that is currently being contested in good
faith or as would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company, 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).
(v) 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 Company or the Adviser for use in connection
with the offering and sale of the Securities (collectively, "sales
material") complied and comply in all material respects with the
applicable requirements of the 1933 Act, the 1933 Act 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
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ 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.
(w) The Company's directors 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 Company is in
compliance with the terms of such policy and fidelity bond in all material
respects; and there are no claims by the Company 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 Company has not been
refused any insurance coverage sought or applied for; and the Company has
no reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company, 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).
(x) The Company has such licenses, permits and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and assets and to conduct its business in the manner
described in the Prospectus; the Company 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 Company under any such
7
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
Company.
(y) The Company maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with general or specific
authorization from the Company's officers and with the investment
objectives, policies and restrictions of the Company and the applicable
requirements of the 1940 Act, the 1940 Act Rules and Regulations and 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 general or
specific authorization from the Company's officers; 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.
(z) The Company 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 Company to facilitate
the sale or resale of the Securities, and the Company is not aware of any
such action taken or to be taken by any affiliates of the Company.
(aa) This Agreement and each of the Company 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.
(bb) Except as disclosed in the Registration Statement and the
Prospectus, no director of the Company is an "interested person" (as
defined in the ▇▇▇▇ ▇▇▇) of the Company or an "affiliated person" (as
defined in the ▇▇▇▇ ▇▇▇) of any Underwriter listed in Schedule I hereto.
(cc) The conduct by the Company of its business (as described in the
Prospectus) does not require it to be the owner, possessor or licensee of
any patents, patent licenses, trademarks, service marks or trade names
which it does not own, possess or license.
(dd) To the Company's knowledge, neither the Company nor any
employee or agent of the Company has made any payment of funds of the
Company or received or retained any funds in violation of any law, rule or
regulation, which payment, receipt or retention of funds is of a character
required to be disclosed in the Prospectus.
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(ee) Except as disclosed in the Registration Statement and the
Prospectus, the Company (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.
(ff) There is and has been no failure on the part of the Company and
any of the Company's directors or officers, in their capacities as such,
to comply in all material respects 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.
(gg) The operations of the Company are and have been conducted at
all times in compliance in all material respects with any applicable
financial recordkeeping and reporting requirements of The Bank Secrecy Act
of 1970, as amended (including amendments pursuant to the International
Money Laundering Abatement and Anti-Terrorist Financing Act of 2001), the
money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency (collectively,
the "Money Laundering Laws") and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any
arbitrator involving the Company with respect to the Money Laundering Laws
is pending or, to the knowledge of the Company, threatened.
(hh) Neither the Company nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company is
currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department ("OFAC"); and the
Company will not directly or indirectly use the proceeds of the offering,
or lend, contribute or otherwise make available such proceeds to any other
person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC.
(ii) Neither the Company nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company is aware of
or has taken any action, directly or indirectly, that would result in a
violation by such persons of the FCPA, including, without limitation,
making use of the mails or any means or instrumentality of interstate
commerce corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to
any "foreign official" (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company, and, to
the knowledge of the Company, its affiliates have conducted their
businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to
9
ensure, and which are reasonably expected to continue to ensure, continued
compliance therewith.
Any certificate signed by any officer of the Company 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 Company,
as to matters covered therein, to each Underwriter.
2. Representations and Warranties of the Adviser. The Adviser represents
and warrants to each Underwriter as follows:
(a) The Adviser is a limited partnership duly organized and validly
existing in good standing under the laws of the State of California, with
full partnership power and authority to own, lease and operate its
properties or assets and to conduct its business as described in the
Registration Statement and the Prospectus, and is duly qualified to do
business as a foreign limited partnership and is in good standing under
the laws of each jurisdiction which requires such qualification.
(b) The Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by the
Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the
1940 Act Rules and Regulations from acting under the Advisory Agreement
for the Company as contemplated by the Prospectus.
(c) The Adviser has full partnership power and authority to enter
into this Agreement and the Advisory Agreement, the execution and delivery
of, and the performance by the Adviser of its obligations under, this
Agreement and the Advisory Agreement have been duly and validly authorized
by the Adviser; and this Agreement and the Advisory Agreement have been
duly executed and delivered by the Adviser and constitute the valid and
legally binding agreements of the Adviser, enforceable against the Adviser
in accordance with their terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws
or principals of public policy and subject to the qualification that the
enforceability of the Adviser's obligations hereunder and thereunder may
be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles,
regardless whether enforcement is considered in a proceeding in equity or
at law.
(d) The Adviser has the financial resources available to it
necessary for the performance of its services and obligations as
contemplated in the Prospectus and under this Agreement and the Advisory
Agreement.
(e) The description of the Adviser and its business, and the
statements attributable to the Adviser, in the Registration Statement and
the Prospectus complied and comply in all material respects with the
provisions the Acts, the
10
Advisers Act, the Rules and Regulations, and the Advisers Act Rules and
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading.
(f) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Adviser or its property is pending or, to the best knowledge of the
Adviser, threatened that (i) could reasonably be expected to have a
material adverse effect on the ability of the Adviser to fulfill its
obligations hereunder or under the Advisory Agreement or (ii) could
reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Adviser, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto); and there are no
agreements, contracts, indentures, leases or other instruments relating to
the Adviser that are required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that are not described or filed as required by the
Acts or the Rules and Regulations.
(g) The Adviser has such licenses, permits and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus; the Adviser has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the Adviser under any such permit.
(h) This Agreement and the Advisory Agreement comply in all material
respects with all applicable provisions of the 1940 Act, the 1940 Act
Rules and Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(i) No consent, approval, authorization, filing with or order of any
court or governmental agency or body or supervisory authority is required
in connection with the transactions contemplated herein or in the Advisory
Agreement, other than (a) those that have been made or obtained under the
Acts, (b) those under state securities or 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, (c) any necessary approval of the
Corporate Financing Department of NASD Regulation, Inc., and (d) such
other approvals as have been obtained.
(j) Neither the execution, delivery or performance of this Agreement
or the Advisory Agreement, nor the consummation by the Company or the
Adviser of the transactions herein or therein contemplated (i) conflicts
or will conflict with or constitutes or will constitute a breach of the
certificate of limited partnership or agreement of limited partnership of
the Adviser, (ii) conflicts or will conflict with
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or constitutes or will constitute a breach of or a default under, any
material agreement, indenture, lease or other instrument to which the
Adviser is a party or by which it or any of its properties may be bound or
(iii) violates or will violate any material statute, law, regulation or
filing or judgment, injunction, order or decree applicable to the Adviser
or any of its properties or will result in the creation or imposition of
any material lien, charge or encumbrance upon any property or assets of
the Adviser pursuant to the terms of any agreement or instrument to which
the Adviser is a party or by which the Adviser may be bound or to which
any of the property or assets of the Adviser is subject.
(k) The Adviser has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities, and the Adviser is not aware of any
such action taken or to be taken by any affiliates of the Adviser.
(l) In the event that the Company or the Adviser makes available any
promotional materials intended for use only by qualified broker-dealers
and registered representatives thereof by means of an Internet web site or
similar electronic means, the Adviser will install and maintain
pre-qualification and password-protection or similar procedures which are
reasonably designed to effectively prohibit access to such promotional
materials by persons other than qualified broker-dealers and registered
representatives thereof.
Any certificate signed by any officer of the Adviser and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Adviser,
as to matters covered therein, to each Underwriter.
3. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at a purchase price of $[ ] per
share, the number of the Underwritten Securities set forth opposite such
Underwriter's name in Schedule I hereto. The Underwriters hereby agree to
pay the Company $[ ] as a reimbursement of certain offering expenses.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company 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
12
on or before the 45th day after the date of the Prospectus upon written or
telegraphic notice by the Representatives to the Company 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.
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 [ ] , 2004,
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 Company 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
Company by wire transfer payable in same-day funds to an account specified by
the Company. 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 Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, c/o
Citigroup Global Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
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
Company by wire transfer payable in same-day funds to an account specified by
the Company. If settlement for the Option Securities occurs after the Closing
Date, the Company 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(m) 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 Company and the Adviser. The Company and the Adviser,
jointly and severally, agree with the several Underwriters as follows:
13
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the
Registration Statement or supplement to the Prospectus or any Rule 462(b)
Registration Statement unless the Company 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 Company 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 Company will promptly advise
the Representatives (1) when the Registration Statement, if not effective
at the Execution Time, shall have become effective, (2) when the
Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 497 or when any Rule 462(b)
Registration Statement shall have been filed with the Commission, (3)
when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (4) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Prospectus or for any additional
information, (5) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) of
the receipt by the Company 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 Company 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 1933 Act, any event occurs as a result
of which, in the reasonable judgment of the Company or in the reasonable
opinion of counsel for 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 Acts and the Rules and
Regulations, the Company 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.
14
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company which will satisfy the provisions
of Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act.
(d) The Company 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 1933 Act, as
many copies of each Preliminary Prospectus and the Prospectus and any
supplement thereto as the Representatives may reasonably request.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities;
provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other
than those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(f) The Company 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 Company or any affiliate of the Company or
any person in privity with the Company, 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 shares of
Common Stock of the Company or any securities convertible into, or
exercisable, or exchangeable for, shares of Common Stock of the Company;
or publicly announce an intention to effect any such transaction for a
period of 180 days following the Execution Time, provided, however, that
the Company may issue and sell Common Stock pursuant to any dividend
reinvestment plan of the Company in effect at the Execution Time.
In the event that either (x) during the last 17 days of the 180-day period
referred to above, the Company issues an earnings release or (y) prior to
the expiration of such 180-day period, the Company announces that it will
release earnings results during the 17-day period beginning on the last
day of such 180-day period, the restrictions described above shall
continue to apply until the expiration of the 17-day period beginning on
the date of the earnings release.
15
(g) The Company 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 Company's
directors 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 Company and the Adviser will not take, directly or
indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(i) The Company agrees to pay the costs and expenses relating to the
following matters: (A) 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; (B) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, 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; (C)
the preparation, printing, authentication, issuance and delivery of
certificates for the Securities, including any stamp or transfer taxes in
connection with the original issuance and sale of the Securities; (D) 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; (E) the registration of the Securities under the 1933 Act
and the listing of the Securities on the NYSE; (F) 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 and the preparation of the blue sky
memorandum); (G) 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); (H) the transportation and other
expenses incurred by or on behalf of Company representatives in connection
with presentations to prospective purchasers of the Securities; (I) the
fees and expenses of the Company's accountants and the fees and expenses
of counsel (including local and special counsel) for the Company; and (J)
all other costs and expenses incident to the performance by the Company of
its obligations hereunder, but not including the fees, expenses, and costs
of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Underwriters, except as
provided in Sections 6(i)(D), (F) and (G) above and in Section 8 of this
Agreement.
16
(j) The Company 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 Company as
described in the Prospectus.
(k) The Company and the Adviser will use their reasonable best
efforts to perform all of the agreements required of them by this
Agreement and discharge all conditions of theirs to closing as set forth
in this Agreement.
7. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Securities, as the case may be, shall be
subject to the accuracy of the representations and warranties on the part of the
Company and the Adviser 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 Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company or the Adviser of its
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the total
public offering price, if such determination occurred at or prior to 3:00
PM New York City time on such date or (ii) 9:30 AM on the Business Day
following the day on which the total public offering price was determined,
if such determination occurred after 3:00 PM New York City time on such
date; if filing of the Prospectus, or any supplement thereto, is required
pursuant to Rule 497, the Prospectus, and any such supplement, will be
filed in the manner and within the time period required by Rule 497; and
no stop order suspending the effectiveness of the Registration Statement
or order pursuant to Section 8(e) of the 1940 Act shall have been issued
and no proceedings for that purpose shall have been instituted or
threatened, and any request of the Commission for additional information
(to be included in the Registration Statement or Prospectus or otherwise)
shall have been complied with in all material respects.
(b) The Company shall have requested and caused Paul, Hastings,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to
you, as Representatives of the several Underwriters, to the effect that:
(i) Based solely on a review of good standing certificates of
the Secretary of State of California and the State Department of
Assessments and Taxation of Maryland, the Company is duly qualified
to do business as a foreign corporation and is in good standing
under the laws of each such jurisdiction;
(ii) The Company is duly registered with the Commission under
the 1940 Act as a closed-end, non-diversified management investment
17
company, and all required action has been taken by the Company under
the Acts 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 provisions of the Charter and the Bylaws of the
Company comply as to form in all material respects with the
requirements of the 1940 Act and the 1940 Act Rules and Regulations;
and the Company 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 Company and complies with the provisions of the
1940 Act and the 1940 Act Rules and Regulations applicable to the
Company;
(iv) Each of the Company Agreements has been duly authorized,
executed and delivered by the Company; each the Company Agreements
comply in all material respects with all applicable provisions of
the Acts, the Advisers Act, the Rules and Regulations and the
Advisers Act Rules and Regulations; and each of the Company
Agreements constitutes the valid and legally binding agreements of
the Company, enforceable against the Company in accordance with
their terms, except as rights to indemnity and contribution may be
limited by federal or state securities laws or principles of public
policy and subject to the qualification that the enforceability of
the Company's obligations thereunder may be limited by bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and
by general equitable principles, regardless whether enforcement is
considered in a proceeding in equity or at law;
(v) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement or any of the
Company Agreements by the Company, nor the consummation by the
Company of the transactions herein or therein contemplated or the
adoption of the Company's Dividend Reinvestment Plan (i) to our
knowledge, conflicts or will conflict with or constitutes or will
constitute a material breach of or a default under, any agreement,
indenture, lease or other instrument to which the Company is a party
or by which it or any of its properties may be bound or (ii)
violates or will violate any material statute, law, regulation or
filing or judgment, injunction, order or decree applicable to the
Company or any of its properties or (iii) to our knowledge, will
result in the creation or imposition of any material lien, charge or
encumbrance upon any property or assets of the Company 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 Company is subject;
(vi) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
18
governmental agency, authority or body or any arbitrator involving
the Company 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 Acts or
the Rules and Regulations; and the statements included in the
Prospectus under the headings "Tax Matters" and "Description of
Capital Stock" insofar as they purport to constitute summaries of
legal matters, agreements, documents or proceedings discussed
therein, accurately and fairly summarize such legal matters,
agreements, documents or proceedings described therein in all
material prospects;
(vii) No consent, approval, authorization, filing with or
order of any federal or California governmental agency or body or
supervisory authority, or to our knowledge, any California,
Maryland, or United States federal court, is required in connection
with the transactions contemplated herein or in the Company
Agreements, other than (a) those that have been made or obtained
under the Acts, (b) those under state securities or 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 (as to which such counsel
expresses no opinion), (c) any necessary approval of the Corporate
Financing Department of NASD Regulation, Inc. (as to which such
counsel expresses no opinion), and (d) such other approvals
(specified in such opinion) as have been obtained;
(viii) The Securities are duly listed, and admitted and
authorized for trading, subject to official notice of issuance, on
the NYSE;
(ix) 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 Company are outstanding;
(x) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement;
and
(xi) The Registration Statement has become effective under the
1933 Act (which opinion is based solely on telephonic advice
received by such counsel from the Commission); 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, based solely on
telephonic advice received by such counsel from the Commission, no
stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that
19
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) appear on their
face to comply as to form in all material respects with the
applicable requirements of the Acts and the Rules and Regulations.
Such counsel shall also state that, although such counsel has not
independently verified and is not passing upon and does not assume
responsibility, explicitly or implicitly, for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or Prospectus
(except as to the extent expressly stated in the opinion of such counsel), 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, Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (A) may
state that they express no opinion as to the laws of any jurisdiction other than
the laws of the State of California and the federal laws of the United States of
America, (B) may rely as to matters involving the laws of the State of Maryland
upon the opinion of ▇▇▇▇▇▇▇ LLP referred to in paragraph (c) of this Section 7
and (C) may rely, as to matters of fact, upon the representations and warranties
made by the Company and the Adviser herein and on certificates and written
statements of officers and employees of and accountants for the Company and the
Adviser and of public officials. Except as otherwise specifically provided
herein, when giving their opinions to their "knowledge", Paul, Hastings,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP has relied solely upon an inquiry of the attorneys of that
firm who have worked on matters for the Company, on certificates or written
statements of officers of the Company and, where appropriate, a review of the
Registration Statement, Prospectus, exhibits to the Registration Statement, the
Charter and Bylaws of the Company and a review of the minute books of the
Company and have made no other investigation or inquiry.
(c) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇ LLP, special Maryland counsel to the Company, dated the Closing
Date and addressed to you, as Representatives of the several Underwriters,
to the effect that:
(i) The Company is a corporation duly incorporated and
existing under and by virtue of the laws of the State of Maryland
and is in good standing with the State Department of Assessments and
Taxation of Maryland;
20
(ii) The Company has corporate power to own its properties or
assets and conduct its business as described in the Prospectus under
the caption "▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MLP Investment Company";
(iii) The Company has the authority to issue the number of
shares of Common Stock set forth in the Prospectus under the caption
"Description of Capital Stock - Capital Stock;" the authorized stock
of the Company conforms in all material respects as to legal matters
to the description thereof contained in the Prospectus under the
heading "Description of Capital Stock;" the shares of Common Stock
issued and outstanding as of the date hereof (immediately prior to
the issuance of the Securities) have been duly authorized and
validly issued and are fully paid and nonassessable; the sale and
issuance of the Securities have been duly authorized and, when
issued and delivered to and paid for by the Underwriters in
accordance with this Agreement and the resolutions of the Board of
Directors of the Company, the Securities will be validly issued,
fully paid and nonassessable; the form of certificate representing
the Securities complies in all material respects with the applicable
statutory requirements of the Maryland General Corporation Law (the
"MGCL") and with any applicable requirements of the Charter (the
"Charter") of the Company and the Bylaws (the "Bylaws") of the
Company; and, the Securities are not subject to preemptive or other
similar rights under the MGCL, the Charter or the Bylaws;
(iv) The Company has corporate power to execute and deliver
this Agreement and the Company Agreements and perform the
obligations thereunder and each of this Agreement and the Company
Agreements has been duly and validly authorized, executed and, so
far as is known to counsel, delivered by the Company;
(v) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not
conflict with or constitute a breach of the Charter or the Bylaws,
or any Maryland law or regulation, or, so far as is known to
counsel, any order of any Maryland governmental authority (other
than any law, regulation or order in connection with the securities
laws of the State of Maryland, as to which no opinion is hereby
expressed); and
(vi) The statements in the Prospectus under the caption
"Description of Capital Stock" and "Risk Factors - Anti-Takeover
Provisions," insofar as such statements purport to summarize certain
provisions of Maryland law or the Charter or Bylaws, such statements
constitute a fair summary of such provisions and are accurate in all
material respects.
In rendering such opinion, ▇▇▇▇▇▇▇ LLP may rely, as to matters of fact,
upon the representations and warranties made by the Company and the Adviser
herein and on
21
certificates and written statements of officers and employees of
and accountants for the Company and the Adviser and of public officials. Except
as otherwise specifically provided herein, when giving their opinions to their
"knowledge", ▇▇▇▇▇▇▇ LLP has relied solely upon an inquiry of the attorneys of
that firm who have worked on matters for the Company, on certificates or written
statements of officers of the Company and, where appropriate, a review of the
Registration Statement, Prospectus, exhibits to the Registration Statement, the
Charter and Bylaws of the Company and have made no other investigation or
inquiry.
(d) You shall have received on the Closing Date an opinion of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, Esq., General Counsel for the Adviser, dated the Closing Date
and addressed to you, as Representatives of the several Underwriters, to
the effect that:
(i) The Adviser has been duly organized and is validly
existing as a limited partnership in good standing under the laws of
the State of California, with partnership power and authority to
own, lease and operate its properties or assets and to conduct its
business as described in the Registration Statement and in the
Prospectus, and is duly qualified to do business as a foreign
limited partnership and is in good standing under the laws of each
jurisdiction which requires such qualification;
(ii) The Adviser is duly registered as an investment adviser
under the Advisers Act and the Advisers Act Rules and Regulations
and, is not prohibited by the Advisers Act, the Advisers Act Rules
and Regulations, the 1940 Act or the 1940 Act Rules and Regulations,
from acting under the Advisory Agreement as contemplated by the
Prospectus;
(iii) The Adviser has full partnership power and authority to
enter into this Agreement and the Advisory Agreement;
(iv) This Agreement has been duly authorized, executed and
delivered by the Adviser;
(v) The Advisory Agreement has been duly authorized, executed
and delivered by the Adviser and the Advisory Agreement is 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 or principles of public policy and subject to the
qualification that the enforceability of the Adviser's obligations
hereunder and thereunder may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general
equitable principles, regardless whether enforcement is considered
in a proceeding in equity or at law;
22
(vi) To the knowledge of such counsel, this Agreement and the
Advisory Agreement comply in all material respects with all
applicable provisions of the Acts, 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 or the Advisory
Agreement nor the consummation by the Adviser of the transactions
herein or therein contemplated (i) conflicts or will conflict with
or constitutes or will constitute a breach of or default under the
certificate of limited partnership or agreement of limited
partnership, or other organizational documents, of the Adviser, (ii)
conflicts or will conflict with, or constitutes or will constitute a
breach of or default under any agreement, indenture, lease or other
instrument to which the Adviser is a party or by which it or any of
its properties may be bound or (iii) to the knowledge of such
counsel, violates or will violates any statute, law, regulation or
filing or judgment, injunction, order or decree applicable to the
Adviser or any of its properties or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Adviser pursuant to the terms of any agreement or
instrument to which it is a party or by which it may be bound or to
which any of the property or assets of the Adviser are subject;
(viii) To the knowledge of such counsel, the description of
the Adviser and its business in the Prospectus complies in all
material respects with all requirements of the Acts 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 Acts or
the Rules and Regulations;
(x) To the knowledge of such counsel, no consent, approval,
authorization, filing with or order of any court or governmental
agency or body or supervisory authority is required in connection
with the transactions contemplated herein or in the Advisory
Agreement, other than (a) those that have been made or obtained
under the Acts, (b) those under state securities or 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 (as to which such counsel
expresses no opinion), (c) any necessary approval of the Corporate
Financing Department of NASD Regulation, Inc. (as to which
23
such counsel expresses no opinion), and (d) 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 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 (A) may state that he expresses no
opinion as to the laws of any jurisdiction other than the laws of the State of
California and the federal laws of the United States of America, (B) may rely,
as to matters of fact, upon the representations and warranties made by the
Company and the Adviser herein and on certificates and written statements of
officers and employees of and accountants for the Company and the Adviser and of
public officials, and (C) may state that he is a member of the Bar of the State
of California.
(e) The Representatives shall have received on the Closing Date an
opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters,
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. In rendering such
opinion, Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP (A) may state that they express no
opinion as to the laws of any jurisdiction other than the laws of the
State of New York, the laws of the State of Maryland and the federal laws
of the United States of America, (B) may rely as to matters involving the
laws of the State of Maryland upon the opinion of ▇▇▇▇▇▇▇ LLP referred to
in paragraph (c) of this Section 7 and (C) may rely, as to matters of
fact, upon the representations and warranties made by the Company and the
Adviser herein and on certificates and written statements of officers and
employees of and accountants for the Company and the Adviser and of public
officials. Except as otherwise specifically provided herein, when giving
their opinions to their "knowledge", Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP have
relied solely upon an inquiry of the attorneys of that firm who have
worked on matters for the Company, on certificates or written statements
of officers of the Company and, where appropriate, a review of the
Registration Statement, Prospectus, exhibits to the Registration
Statement, the Charter and Bylaws of the Company and a review of the
minute books of the Company and have made no other investigation or
inquiry.
24
(f) Each of the Company and the Adviser shall have furnished to the
Representatives a certificate, signed by the Chief Executive Officer and
the principal financial or accounting officer of each of the Company and
the Adviser, as the case may be, dated the Closing Date, to the effect
that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, any supplements to the Prospectus
and this Agreement and that:
(i) The representations and warranties of the Company and the
Adviser in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing Date and
the Company and the Adviser have complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted by the Commission or, to the Company's
or the Adviser's knowledge, threatened by the Commission; 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 Company) and since the date
of the Prospectus (with respect to the certificate of the Adviser),
there has been no material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company or the Adviser, whether or not arising
from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(g) The Company shall have requested and caused
PricewaterhouseCoopers 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.
(h) 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 (g) 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 Company and the Adviser, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated
in the Prospectus (exclusive of any supplement thereto) the effect of
which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the Representatives, so material and adverse as to make
it impractical or
25
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).
(i) 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.
(j) The NASD has confirmed that it has not raised any objection with
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(k) On or prior to the Closing Date, the Representatives shall have
received lock-up agreements substantially in the form of Exhibit A hereto
(the "Lock-up Agreements") from certain officers of the Adviser (including
all of the officers of the Company) listed on Schedule II hereof.
(l) Prior to the Closing Date, the Company and the Adviser shall
have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably request.
(m) In the event that the Underwriters exercise their option
provided in Section 3(b) hereof to purchase all or any portion of the
Option Securities, the representations and warranties of the Company and
the Adviser contained herein and the statements in any certificates
furnished by the Company and the Adviser hereunder shall be true and
correct as of each settlement date and, at the relevant settlement date,
the Representatives shall have received:
(i) A certificate, dated such settlement date, signed by the
Chief Executive Officer and the principal financial or accounting
officer of each of the Company and the Adviser confirming that the
certificate delivered at the Closing Date pursuant to Section 7(f)
hereof remains true and correct as of such settlement date.
(ii) The favorable opinions of Paul, Hastings, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, counsel to the Company, ▇▇▇▇▇▇▇ LLP, special Maryland
counsel to the Company, and of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq., general
counsel of the Adviser, each in form and substance satisfactory to
the counsel for the Underwriters, dated such settlement date,
relating to the Option Securities to be purchased on such settlement
and otherwise to the same effect as the opinions required by
Sections 7(b), 7(c) and 7(d) hereof, respectively.
(iii) The favorable opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel for the Underwriters, dated such settlement date, relating
to the Option Securities to be purchased on such settlement date and
otherwise to the same effect as the opinion required by Section 7(e)
hereof.
26
(iv) A letter from PricewaterhouseCoopers LLP in form and
substance satisfactory to the Representatives and dated such
settlement date, substantially the same in form and substance as the
letter furnished to the Representatives pursuant to Section 7(g),
except that the "specified date" in the letter furnished pursuant to
this paragraph shall be a date not more than three days prior to
such settlement date.
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 Company 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 Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, Esq., on the Closing Date.
8. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 7 hereof is not satisfied, because of
any termination pursuant to Section 11 hereof or because of any refusal,
inability or failure on the part of the Company or the Adviser to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company 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 Company and the Adviser, jointly and severally, agree to
indemnify and hold harmless each of you and each other Underwriter, the
directors, officers, employees and agents of each Underwriter and each
person who controls any Underwriter within the meaning of either the 1933
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
1933 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
27
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 Company and the Adviser will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company and
the Adviser by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which the Company and the Adviser may otherwise
have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless each of the Company and the Adviser, each of its
directors, each of its officers who signs the Registration Statement, and
each person who controls the Company or the Adviser within the meaning of
either the 1933 Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company and the Adviser to each Underwriter,
but only with reference to written information relating to such
Underwriter furnished to the Company or the Adviser by or on behalf of
such Underwriter through the Representatives specifically for inclusion in
the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Company and the Adviser acknowledge that the
statements set forth in the last paragraph of the cover page regarding
delivery of the Securities and, under the heading "Underwriting", (i) the
list of Underwriters and their respective participation in the sale of the
Securities, (ii) the sentences related to concessions and reallowances and
(iii) the paragraph related to stabilization, syndicate covering
transactions and penalty bids in any Preliminary Prospectus and the
Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary
Prospectus or the Prospectus.
(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 the indemnifying party 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
28
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) and to control such action; provided, however, that such counsel
shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the right
to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate
counsel if (A) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict
of interest, (B) 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, (C) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action or
(D) 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 Company, the Adviser and the
Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company, the Adviser and one or more
of the Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Adviser on
the one hand (treated jointly for this purpose as one person) and by the
Underwriters on the other from the offering of the Securities; provided,
however, that in no case shall any Underwriter (except as may be provided
in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company, the Adviser
and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the Adviser on the one hand (treated
jointly for this purpose as one person) and of the Underwriters on the
other in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations.
Benefits received by the Company and the Adviser (treated jointly for this
purpose as one person) shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by it, and
benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set
29
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
Company and the Adviser on the one hand (treated jointly for this purpose
as one person) or the Underwriters on the other, the intent of the parties
and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company, the
Adviser and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 9 were determined by pro rata
allocation or any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇)
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 1933
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 Company or the Adviser
within the meaning of either the 1933 Act or the Exchange Act, each
officer of the Company and the Adviser who shall have signed the
Registration Statement and each director of the Company and the Adviser
shall have the same rights to contribution as the Company and the Adviser,
subject in each case to the applicable terms and conditions of this
paragraph (d). The Underwriters' obligations to contribute pursuant to
this Section 9 are several in proportion to the respective number of
Securities set forth opposite their names in Schedule I (or such numbers
of Securities increased as set forth in Section 10 hereof) and not joint.
(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 Company and the
Adviser set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter, the Company,
the Adviser or their shareholders, trustees, directors, managers, members
or officers or any person controlling the Company or the Adviser (control
to be determined within the meaning of the 1933 Act or the
30
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 Company, the Adviser or their shareholders,
trustees, directors, managers, members or officers or any person
controlling any Underwriter, the Company or the Adviser shall be entitled
to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 9.
10. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the number of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate number of
Securities set forth opposite the names of all the remaining Underwriters or in
such other proportion as Citigroup Global Markets Inc. may specify in accordance
with the Citigroup Global Markets Inc. Master Agreement Among Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate number of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate number 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
Company or the Adviser. In the event of a default by any Underwriter as set
forth in this Section 10, the Closing Date shall be postponed for such period,
not exceeding five Business Days, as the Representatives shall determine in
order that the required changes in the Registration Statement and the Prospectus
or in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder. The term "Underwriter" as used in this Agreement
includes, for all purposes of this Agreement, any party not listed in Schedule I
hereto who, with your approval and the approval of the Company, purchases
Securities which a defaulting Underwriter agreed, but failed or refused, to
purchase.
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 Company or the Adviser, by notice given to the Company or
the Adviser prior to delivery of and payment for the Securities, if at any time
prior to such time (i) trading in the Company's Common Stock 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 NYSE, (ii) a banking moratorium shall have been declared
either by federal or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war, or other calamity or crisis the effect of
which on financial markets is such as to make it, in the sole judgment of the
Representatives,
31
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
Company and the Adviser or its officers and of the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company or
the Adviser or any of the officers, trustees, directors, employees, agents or
controlling persons referred to in Section 9 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 8 and 9 hereof
shall survive the termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax no.:
(▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, Citigroup Global Markets
Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: General
Counsel; or, if sent to the Company or the Adviser, will be mailed, delivered or
telefaxed to the Kayne Capital Advisors, L.P. General Counsel (fax no.: (310)
▇▇▇-▇▇▇▇) and confirmed to it at Kayne Capital Advisors, L.P., 1800 Avenue of
the Stars, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, Esq.
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.
"1933 Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"1933 Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the 1933 Act.
32
"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 Company as an investment company under the 1940 Act on Form N-8A, as
the 1940 Act Notification may be amended from time to time.
"Acts" shall mean, collectively, the 1933 Act and the 1940 Act.
"Advisers Act" shall mean the Investment Advisers Act of 1940, as
amended.
"Advisers Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the Advisers Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City.
"Code" means the Internal Revenue Code of 1986, as amended.
"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.
"Exchange Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the Exchange Act.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"FCPA" means Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder.
"NASD" means the National Association of Securities Dealers, Inc.
"NYSE" means the New York Stock Exchange, Inc.
"Preliminary Prospectus" shall mean any preliminary prospectus
(including the statement of additional information incorporated by
reference therein) referred to in Section 1(a) above and any preliminary
prospectus
33
(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 Section 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 1933
Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to
Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement
referred to in Section 1(a) hereof.
"Rule 497" refers to Rule 497(c) or 497(h) under the 1933 Act,
as applicable.
"Rules and Regulations" shall mean, collectively, the 1933 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
Company, the Adviser and the several Underwriters.
Very truly yours,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MLP INVESTMENT COMPANY
By:_________________________________
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CAPITAL ADVISORS, L.P.
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Investment Management, Inc.,
its General Partner
By:_________________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Citigroup Global Markets Inc.
UBS Securities LLC
as Representatives of the several Underwriters
By: Citigroup Global Markets Inc.
By: ______________________________________________________
Name:
Title:
For itself and the several Underwriters listed in Schedule I hereto.
35
SCHEDULE I
NUMBER OF
UNDERWRITTEN
SECURITIES TO
UNDERWRITERS BE PURCHASED
------------ ------------
Citigroup Global Markets Inc. [ ]
UBS Securities LLC [ ]
RBC Capital Markets Corporation [ ]
Wachovia Capital Markets, LLC [ ]
Deutsche Bank Securities Inc. [ ]
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Inc. [ ]
- [ ]
- [ ]
- [__]
Total [ ]
==
SCHEDULE II
[List of officers of Adviser (including all of the officers of the Company) who
will execute Lock-up Agreements]
EXHIBIT A
[Form of Lock-up Agreement]
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MLP Investment Company
Public Offering of Common Stock
[ ], 2004
Citigroup Global Markets Inc.
UBS Securities LLC
as Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), among ▇▇▇▇▇
▇▇▇▇▇▇▇▇ MLP Investment Company, a Maryland corporation (the "Company"), ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Capital Advisors, L.P., a California limited partnership (the
"Adviser"), and each of you as representatives of a group of underwriters named
therein (the "Underwriters"), relating to an underwritten initial public
offering (the "Initial Public Offering") of common stock, $0.001 par value (the
"Common Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, any shares of Common
Stock or securities convertible into or exchangeable or exercisable for any
shares of Common Stock, enter into a transaction that would have the same
effect, or enter into any swap, hedge or other arrangement that transfers, in
whole or in part, any of the economic consequences of ownership of Common Stock,
whether any of these transactions are to be settled by delivery of Common Stock
or other securities, in cash or otherwise, or publicly disclose the intention to
make any offer, sale, pledge or disposition, or to enter into any transaction,
swap, hedge or other arrangement, without, in each case, the prior written
consent of Citigroup Global Markets Inc. for a period of 180 days after the date
of this Prospectus (as defined in the Underwriting Agreement) (such period, the
"Lock-Up Period"). Citigroup Global Markets Inc. in their sole discretion may
release any of the securities subject to lock-up agreements at any time without
notice. In the event that either (x) during the last 17 days of the Lock-Up
Period, the Company issues an earnings release or (y) prior to the expiration of
the Lock-Up Period, the Company announces that the Company will release earnings
results during the 17-day period beginning on the last day of the Lock-Up
Period, the restrictions described above shall continue to apply until the
expiration of the 17-day period beginning on the date of the earnings release.
Notwithstanding the foregoing, the undersigned may transfer any
shares of Common Stock owned by him or her or any interest therein (i) for
estate-planning purposes to (x) a trust under which the distribution of the
shares of Common Stock transferred thereto may be made only to beneficiaries who
are the undersigned, his or her spouse, his or her parents, members of his or
her immediate family or his or her lineal descendants (collectively, "Permitted
Family Members"), (y) a corporation the stockholders of which are only the
undersigned or Permitted Family Members or (z) a partnership the partners of
which are only the undersigned or Permitted Family Members or (ii) in case of
the death of the undersigned, by will or by the laws of intestate succession, to
his or her executors, administrators, testamentary trustees, legatees or
beneficiaries (each such person to which a transfer is permitted pursuant to
clauses (i) and (ii) immediately above is hereinafter referred to as a
"Permitted Transferee"); provided, however, that in each such case, the shares
of Common Stock transferred shall be subject to all provisions of this agreement
as though the undersigned were still the holder of such shares of Common Stock;
and provided further, that the Permitted Transferee must execute and deliver to
Citigroup Global Markets Inc. an agreement stating that the Permitted Transferee
is receiving and holding such shares of Common Stock in the same manner as the
person making the transfer.
2
If for any reason the Underwriting Agreement shall be terminated
prior to the Closing Date (as defined in the Underwriting Agreement), the
agreement set forth above shall likewise automatically be terminated.
Yours very truly,
Signature: __________________________
Print Name: _________________________
3