EXHIBIT h.1
Calamos Convertible Opportunities and Income Fund
(a Delaware business trust)
[ ] Common Shares
(No Par Value Per Share)
PURCHASE AGREEMENT
June 25, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
UBS Warburg LLC
Advest, Inc.
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.
First Union Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated
McDonald Investments Inc., a KeyCorp Company
▇▇▇▇▇▇▇▇, Inc.
Wedbush ▇▇▇▇▇▇ Securities
c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Calamos Convertible Opportunities and Income Fund, a Delaware business
trust (the "Trust"), and the Trust's investment adviser, Calamos Asset
Management, Inc., an Illinois corporation (the "Investment Adviser"), each
confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and UBS Warburg LLC, RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇
Inc., First Union Securities, Inc., Advest, Inc. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated, McDonald Investment Inc., a KeyCorp
Company, ▇▇▇▇▇▇▇▇, Inc, Wedbush ▇▇▇▇▇▇ Securities and each of the other
Underwriters named in Schedule A hereto (collectively, the "Underwriters", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ and UBS Warburg LLC, RBC ▇▇▇▇
▇▇▇▇▇▇▇▇ Inc., First Union Securities, Inc., Advest, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ LLC, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated, McDonald Investments Inc. a
KeyCorp Company, ▇▇▇▇▇▇▇▇, Inc. and Wedbush ▇▇▇▇▇▇ Securities, are acting as
representatives (in such capacity, the "Representatives"), with respect to the
issue and sale by the Trust and the purchase by the Underwriters, acting
severally and not jointly, of the respective number of common shares, no par
value per share, of the Trust ("Common Shares") set forth in said Schedule A,
and with respect to the grant by the Trust to the Underwriters, acting severally
and not jointly, of the option described in Section 2(b) hereof to purchase all
or any part of [ ] additional Common Shares to cover over-allotments, if any.
The aforesaid [ ] Common Shares (the "Initial Securities") to be purchased by
the Underwriters and all or any part of the [ ] Common Shares subject to the
option described in Section 2(b) hereof (the "Option Securities") are
hereinafter called, collectively, the "Securities."
The Trust understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
The Trust has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form N-2 (No. 333-86678 and No.
811-21080) covering the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses, and a notification on Form N-8A of registration of
the Trust as an investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"), and the rules and regulations of the Commission under
the 1933 Act and the 1940 Act (the "Rules and Regulations"). Promptly after
execution and delivery of this Agreement, the Trust will either (i) prepare and
file a prospectus in accordance with the provisions of Rule 430A ("Rule 430A")
of the Rules and Regulations and paragraph (c) or (h) of Rule 497 ("Rule 497")
of the Rules and Regulations or (ii) if the Trust has elected to rely upon Rule
434 ("Rule 434") of the Rules and Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 497. The
information included in any such prospectus or in any such Term Sheet, as the
case may be, that was omitted from such registration statement at the time it
became effective but that is deemed to be part of such registration statement at
the time it became effective, if applicable, (a) pursuant to paragraph (b) of
Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to paragraph
(d) of Rule 434 is referred to as "Rule 434 Information." Each prospectus used
before such registration statement became effective, and any prospectus that
omitted, as applicable, the Rule 430A Information or the Rule 434 Information,
that was used after such effectiveness and prior to the execution and delivery
of this Agreement, including in each case any statement of additional
information incorporated therein by reference, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto and
schedules thereto at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the Rules and Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final prospectus in
the form first furnished to the Underwriters for use in connection with the
offering of the Securities, including the statement of additional information
incorporated therein by reference, is herein called the "Prospectus." If Rule
434 is relied on, the term "Prospectus" shall refer to the preliminary
prospectus dated June [ ], 2002 together with the Term Sheet and all references
in this Agreement to the date of the Prospectus shall mean the date of the Term
Sheet. For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any Term Sheet or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Trust and the Investment
Adviser. The Trust and the Investment Adviser jointly and severally represent
and warrant to each Underwriter as of the date hereof, as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of Delivery (if any)
referred to in Section 2(b) hereof, and agree with each Underwriter, as follows:
(i) Compliance with Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act, or order of
suspension or revocation of registration pursuant to Section 8(e) of
the 1940 Act, and no proceedings for any such purpose have been
instituted or are pending or, to the knowledge of the Trust or the
Investment Adviser, are
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contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), the Registration Statement,
the Rule 462(b) Registration Statement, the notification on Form N-8A
and any amendments and supplements thereto complied and will comply in
all material respects with the requirements of the 1933 Act, the 1940
Act and the Rules and Regulations and did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement, Rule 462(b) Registration
Statement and any post-effective amendments thereto or the Prospectus
and any amendments or supplements thereto made in reliance upon and in
conformity with information furnished to the Fund by any Underwriter in
writing expressly for use in the Registration Statement, Rule 462(b)
Registration Statement and any post-effective amendments thereto or in
the Prospectus and any amendments or supplements thereto. Neither the
Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued and at the
Closing Time (and, if any Option Securities are purchased, at the Date
of Delivery), included or will include an untrue statement of a
material fact or omitted or will 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. If Rule 434
is used, the Trust will comply with the requirements of Rule 434 and
the Prospectus shall not be "materially different", as such term is
used in Rule 434, from the prospectus included in the Registration
Statement at the time it became effective.
Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 497 under the 1933 Act,
complied when so filed in all material respects with the Rules and
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted
by Regulation S-T.
If a Rule 462(b) Registration Statement is required in connection
with the offering and sale of the Securities, the Trust has complied or
will comply with the requirements of Rule 111 under the 1933 Act
Regulations relating to the payment of filing fees thereof.
(ii) Independent Accountants. The accountants who certified the
statement of assets and liabilities included in the Registration
Statement have represented to the Trust that they are independent
public accountants as required by the 1933 Act and the Rules and
Regulations.
(iii) Financial Statements. The statement of assets and
liabilities included in the Registration Statement and the Prospectus,
together with the related notes, presents fairly the financial position
of the Trust at the date indicated; said statement has been prepared in
conformity with generally accepted accounting principles ("GAAP").
(iv) Expense Summary. The information set forth in the Prospectus
in the Fee Table has been prepared in accordance with the requirements
of Form N-2 and to the extent estimated or projected, such estimates or
projections are reasonably believed to be attainable and reasonably
based.
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(v) No Material Adverse Change. Since the respective dates as of
which information with respect to the Trust is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein and except for changes in the net asset value of the Trust
arising out of normal investment operations, (A) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Trust,
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"), (B) there have been no transactions entered into by
the Trust, other than those in the ordinary course of business, which
are material with respect to the Trust, and (C) there has been no
dividend or distribution of any kind declared, paid or made by the
Trust on any class of its capital stock.
(vi) Good Standing of the Trust. The Trust has been duly
established and is validly existing as a business trust in good
standing under the laws of the State of Delaware and has business trust
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into
and perform its obligations under this Agreement; and the Trust is duly
qualified as a foreign business trust to transact business and is in
good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse Effect.
(vii) No Subsidiaries. The Trust has no subsidiaries.
(viii) Investment Company Status. The Trust is duly registered
with the Commission under the 1940 Act as a closed-end diversified
management investment company and, to the knowledge of the Trust and
the Investment Adviser, no order of suspension or revocation of such
registration has been issued or proceedings therefor initiated or
threatened by the Commission.
(ix) Officers and Trustees. To the knowledge of the Trust and the
Investment Adviser, no person is serving or acting as an officer,
trustee or investment adviser of the Trust except in accordance with
the provisions of the 1940 Act and the Rules and Regulations and the
Investment Advisers Act of 1940, as amended (the "Advisers Act"), and
the rules and regulations of the Commission promulgated under the
Advisers Act (the "Advisers Act Rules and Regulations"). Except as
disclosed in the Registration Statement and the Prospectus (or any
amendment or supplement to either of them), to the knowledge of the
Trust and the Investment Adviser, no trustee of the Trust is an
"interested person" (as defined in the ▇▇▇▇ ▇▇▇) of the Trust or an
"affiliated person" (as defined in the ▇▇▇▇ ▇▇▇) of any Underwriter
listed in Schedule A hereto.
(x) Capitalization. The authorized, issued and outstanding common
shares of beneficial interest of the Trust is as set forth in the
Prospectus as of the date thereof under the caption "Description of
Shares." All issued and outstanding common shares of beneficial
interest of the Trust have been duly authorized and validly issued and
are fully paid and non-assessable and have been offered and sold or
exchanged by the Trust in compliance with all applicable laws
(including, without limitation, federal and state securities laws);
none of the outstanding common shares of beneficial interest of the
Trust was issued in violation of the preemptive or other similar rights
of any securityholder of the Trust.
(xi) Authorization and Description of Securities. The Securities
to be purchased by the Underwriters from the Trust have been duly
authorized for issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered by the Trust pursuant to this
Agreement against payment of the consideration set forth herein, will
be validly issued and fully paid and non-assessable. The Common Shares
conform in all material respects to all statements relating thereto
contained in the Prospectus and such description conforms in all
material respects to the rights set forth in the instruments defining
the same; no holder of the
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Securities will be subject to personal liability solely by reason of
being such a holder; and the issuance of the Securities is not subject
to the preemptive or other similar rights of any securityholder of the
Trust.
(xii) Absence of Defaults and Conflicts. The Trust is not in
violation of its declaration of trust or by-laws, or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other 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 Trust is subject
(collectively, "Agreements and Instruments") except for such violations
or defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement, the Investment
Management Agreement, the Administration Agreement, the Custody
Agreement and the Stocks Transfer Agency Agreement referred to in the
Registration Statement (as used herein, the "Management Agreement," the
"Administration Agreement", the "Custody Agreement" and the "Stocks
Transfer Agency Agreement," respectively) and the consummation of the
transactions contemplated herein and in the Registration Statement
(including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectus
under the caption "Use of Proceeds") and performance by the Trust of
its obligations hereunder have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, violate or constitute a
breach of, or default or Repayment Event (as defined below) under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Trust pursuant to, the Agreements
and Instruments (except for such violations, breaches or defaults or
liens, charges or encumbrances that would not result in a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the declaration of trust or by-laws of the Trust or any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Trust or any of its assets,
properties or operations (except for such violations that would not
result in a Material Adverse Effect). As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Trust.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Trust or the Investment Adviser, threatened,
against or affecting the Trust, which is required to be disclosed in
the Registration Statement (other than as disclosed therein), or which
might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect
the properties or assets of the Trust or the consummation of the
transactions contemplated in this Agreement or the performance by the
Trust of its obligations hereunder. The aggregate of all pending legal
or governmental proceedings to which the Trust is a party or of which
any of its property or assets is the subject which are not described in
the Registration Statement, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result
in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits thereto by the 1933 Act, the 1940
Act or by the Rules and Regulations which have not been so described
and filed as required.
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(xv) Possession of Intellectual Property. The Trust or the
Investment Adviser owns or possesses, or can acquire on reasonable
terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by the Trust, and neither the
Trust nor the Investment Adviser has received any notice or is
otherwise aware of any infringement of or conflict with asserted rights
of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Trust therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Trust of its
obligations hereunder, in connection with the offering, issuance or
sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except such as have been
already obtained or as may be required under the 1933 Act, the 1940
Act, the Securities Exchange Act of 1934, as amended (the "1934 Act"),
or state securities laws.
(xvii) Possession of Licenses and Permits. The Trust possesses
such material permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to operate its properties and to conduct the business
as contemplated in the Prospectus; the Trust is not in violation of the
terms and conditions of any such Governmental Licenses, except where
such violation would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a Material Adverse Effect; and the
Trust has not received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xviii) Advertisements. Any advertising, sales literature or other
promotional material (including "prospectus wrappers", "broker kits,"
"road show slides" and "road show scripts") authorized in writing by or
prepared by the Trust or the Investment Adviser used in connection with
the public offering of the Securities (collectively, "sales material")
does not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein in light of the circumstances under which
they were made not misleading. Moreover, all sales material complied
and will comply in all material respects with the applicable
requirements of the 1933 Act, the 1940 Act, the Rules and Regulations
and the rules and interpretations of the National Association of
Securities Dealers, Inc. ("NASD").
(xix) Subchapter M. The Trust intends to direct the investment of
the proceeds of the offering described in the Registration Statement in
such a manner as to comply with the requirements of Subchapter M of the
Internal Revenue Code of 1986, as amended ("Subchapter M of the Code"
and the "Code," respectively), and intends to qualify as a regulated
investment company under Subchapter M of the Code.
(xx) Material Agreements. This Agreement, the Management
Agreement, the Administration Agreement, the Custody Agreement and the
Stocks Transfer Agency Agreement
6
have each been duly authorized by all requisite action on the part of
the Trust, executed and delivered by the Trust, as of the dates noted
therein and each does not violate any applicable provisions of the 1940
Act. Assuming due authorization, execution and delivery by the other
parties thereto with respect to the Administration Agreement, the
Custody Agreement and the Stocks Transfer Agency Agreement, each of the
Management Agreement, the Administration Agreement, the Custody
Agreement and the Stocks Transfer Agency Agreement constitutes a valid
and binding agreement of the Trust, enforceable in accordance with its
terms, except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and
an implied covenant of good faith and fair dealing.
(xxi) Registration Rights. There are no persons with registration
rights or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the
Trust under the 1933 Act.
(xxii) NYSE Listing. The Securities have been duly authorized for
listing, upon notice of issuance, on the New York Stock Exchange
("NYSE") and the Trust's registration statement on Form 8-A under the
1934 Act has become effective.
(b) Representations and Warranties by the Investment Adviser. The
Investment Adviser represents and warrants to each Underwriter as of the date
hereof, as of the Closing Time referred to in Section 2(c) hereof, and as of
each Date of Delivery (if any) referred to in Section 2(b) hereof as follows:
(i) Good Standing of the Investment Adviser. The Investment
Adviser has been duly established and is validly existing and in good
standing as a corporation under the laws of the State of Illinois with
full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation to transact business and
is in good standing in each other jurisdiction in which such
qualification is required, except where the failure so to qualify or to
be in good standing would not reasonably be expected to result in any
material adverse change in the condition, financial or otherwise, or
earnings, business affairs or business prospects of the Investment
Adviser, materially and adversely affect the properties or assets of
the Investment Adviser or materially impair or adversely affect the
ability of the Investment Adviser to function as an investment adviser
or perform its obligations under the Management Agreement or the
Administration Agreement, or which is required to be disclosed in the
Registration Statement and the Prospectus ("Material Adverse Effect on
the Investment Adviser").
(ii) Investment Adviser Status. The Investment Adviser is
registered with the Commission as an investment adviser under the
Advisers Act, and is not prohibited by the Advisers Act or the 1940
Act, or the rules and regulations under such acts, from acting under
the Management Agreement or Administration Agreement for the Trust as
contemplated by the Prospectus.
(iii) Description of Investment Adviser. The description of the
Investment Adviser in the Registration Statement and the Prospectus
(and any amendment or supplement to either of them) did not violate and
does not violate in any material respect the provisions of the 1933
Act, the 1940 Act, the Rules and Regulations, the Advisers Act and the
Advisers Act Rules and Regulations and is true and correct and does not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
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(iv) Capitalization. The Investment Adviser has the financial
resources available to it necessary for the performance of its services
and obligations as contemplated in the Prospectus, this Agreement and
under the Management Agreement and Administration Agreement.
(v) Authorization of Agreements; Absence of Defaults and
Conflicts. This Agreement, the Management Agreement and the
Administration Agreement have each been duly authorized, executed and
delivered by the Investment Adviser, and the Management Agreement and
the Administration Agreement each constitute a valid and binding
obligation of the Investment Adviser, enforceable in accordance with
its terms, except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law);
and neither the execution and delivery of this Agreement, the
Management Agreement or the Administration Agreement nor the
performance by the Investment Adviser of its obligations hereunder or
thereunder will violate, or result in a breach of any of the terms and
provisions of, or constitute, with or without the giving of notice or
lapse of time or both, a default under, any agreement or instrument to
which the Investment Adviser is a party or by which it is bound and
which are material to the conduct of the Investment Adviser's services
under each of the Management Agreement and the Administration
Agreement, the certificate of incorporation, the by-laws or other
organizational documents of the Investment Adviser, or to the
Investment Adviser's knowledge, by any law, order, decree, rule or
regulation applicable to it of any jurisdiction, court, federal or
state regulatory body, administrative agency or other governmental
body, stock exchange or securities association having jurisdiction over
the Investment Adviser or its properties or operations (except for such
violation, breach or default that would not result in a Material
Adverse Effect on the Investment Adviser); and no consent, approval,
authorization or order of any court or governmental authority or agency
is required for the consummation by the Investment Adviser of the
transactions contemplated by this Agreement, the Management Agreement
or the Administration Agreement, except as have been obtained or may be
required under the 1933 Act, the 1940 Act, the 1934 Act or state
securities laws.
(vi) No Material Adverse Change. Since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, there has not occurred
any event which should reasonably be expected to have a Material
Adverse Effect on the Investment Adviser to perform its obligations
under this Agreement and the Management Agreement and Administration
Agreement.
(vii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Investment Adviser, threatened against or
affecting the Investment Adviser or any "affiliated person" of the
Investment Adviser (as such term is defined in the ▇▇▇▇ ▇▇▇) or any
partners, directors, officers or employees of the foregoing, whether or
not arising in the ordinary course of business, which should reasonably
be expected to result in any material adverse change in the condition,
financial or otherwise, or earnings, business affairs or business
prospects of the Investment Adviser whether or not arising in the
ordinary course of business, materially and adversely affect the
properties or assets of the Investment Adviser or materially impair or
adversely affect the ability of the Investment Adviser to function as
an investment adviser or perform its obligations under the Management
Agreement or the Administration Agreement, or which is required to be
disclosed in the Registration Statement and the Prospectus.
(viii) Absence of Violation or Default. The Investment Adviser is
not in violation of its certificate of incorporation, by-laws or other
organizational documents or in default under any
8
agreement, indenture or instrument, except for such violations or
defaults that would not result in a Material Adverse Effect on the
Investment Adviser or a Material Adverse Effect on the Trust.
(c) Officer's Certificates. Any certificate signed by any officer of
the Trust or the Investment Adviser delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Trust or the Investment Adviser, as the case may be, to each Underwriter as
to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Trust, at the price per share set forth in Schedule B, the number of Initial
Securities set forth in Schedule A opposite the name of such Underwriter, plus
any additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Trust hereby grants an option to the Underwriters, severally and
not jointly, to purchase up to an additional [ ] Common Shares in the aggregate
at the price per share set forth in Schedule B, less an amount per share equal
to any dividends or distributions declared by the Trust and payable on the
Initial Securities but not payable on the Option Securities. The option hereby
granted will expire 45 days after the date hereof and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial Securities upon notice by the Representatives to the Trust setting forth
the number of Option Securities as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery for such
Option Securities. Any such time and date of delivery (a "Date of Delivery")
shall be determined by the Representatives, but shall not be later than seven
full business days after the exercise of said option, nor in any event prior to
the Closing Time, as hereinafter defined. If the option is exercised as to all
or any portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
Option Securities then being purchased which the number of Initial Securities
set forth in Schedule A opposite the name of such Underwriter bears to the total
number of Initial Securities, subject in each case to such adjustments as
▇▇▇▇▇▇▇ ▇▇▇▇▇ in its discretion shall make to eliminate any sales or purchases
of a fractional number of Option Securities.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other
place as shall be agreed upon by the Representatives and the Trust, at 10:00
A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Representatives and the Trust (such time and date of payment and delivery being
herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Trust, on each Date of Delivery as specified in the notice from the
Representatives to the Trust.
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the Trust, against delivery to
the Representatives for the respective accounts of the
9
Underwriters of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial Securities and the Option Securities, if any, which it
has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as representative of
the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Initial Securities or the Option Securities, if any, to
be purchased by any Underwriter whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at least
one full business day before the Closing Time or the relevant Date of Delivery,
as the case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in the City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. Covenants.
(a) The Trust and the Investment Adviser, jointly and severally,
covenant with each Underwriter as follows:
(i) Compliance with Securities Regulations and Commission
Requests. The Trust, subject to Section 3(a)(ii), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify
the Representatives immediately, and confirm the notice in writing, (i)
when any post-effective amendment to the Registration Statement shall
become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Trust will promptly effect
the filings necessary pursuant to Rule 497 and will take such steps as
it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 497 was received for filing by the
Commission and, in the event that it was not, it will promptly file
such prospectus. The Trust will make reasonable efforts to prevent the
issuance of any stop order, or order of suspension or revocation of
registration pursuant to Section 8(e) of the 1940 Act, and, if any such
stop order or order of suspension or revocation of registration is
issued, to obtain the lifting thereof at the earliest possible moment.
(ii) Filing of Amendments. The Trust will give the Representatives
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any
Term Sheet or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, will furnish the Representatives with
copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use
any such document to which the Representatives or counsel for the
Underwriters shall reasonably object.
(iii) Delivery of Registration Statements. The Trust has furnished
or will deliver to the Representatives and counsel for the
Underwriters, without charge, signed copies of the
10
Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein) and signed copies of all consents and certificates
of experts, and will also deliver to the Representatives, without
charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters. The copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(iv) Delivery of Prospectuses. The Trust has delivered to each
Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter reasonably requested, and the Trust
hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Trust will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the Prospectus
(as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(v) Continued Compliance with Securities Laws. If at any time when
a prospectus is required by the 1933 Act to be delivered in connection
with sales of the Securities, any event shall occur or condition shall
exist as a result of which it is necessary, in the reasonable opinion
of counsel for the Underwriters or for the Trust, to amend the
Registration Statement or amend or supplement the Prospectus in order
that the Prospectus will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or
if it shall be necessary, in the reasonable opinion of such counsel, at
any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the Rules and Regulations, the Trust will promptly
prepare and file with the Commission, subject to Section 3(a)(ii), such
amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus
comply with such requirements, and the Trust will furnish to the
Underwriters such number of copies of such amendment or supplement as
the Underwriters may reasonably request.
(vi) Blue Sky Qualifications. The Trust will use its best efforts,
in cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states
and other jurisdictions of the United States as the Representatives may
designate and to maintain such qualifications in effect for a period of
not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement;
provided, however, that the Trust shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Securities have been so
qualified, the Trust will file such statements and reports as may be
required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
(vii) Filing Reports. The Trust will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
11
(viii) Use of Proceeds. The Trust will use the net proceeds
received by it from the sale of the Securities in the manner specified
in the Prospectus under "Use of Proceeds".
(ix) Listing. The Trust will use its reasonable best efforts to
effect the listing of the Securities on the NYSE, subject to notice of
issuance, concurrently with the effectiveness of the Registration
Statement.
(x) Restriction on Sale of Securities. During a period of 180 days
from the date of the Prospectus, the Trust will not, without the prior
written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, (A) directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of Common
Shares or any securities convertible into or exercisable or
exchangeable for Common Shares or file any registration statement under
the 1933 Act with respect to any of the foregoing or (B) enter into any
swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of
ownership of the Common Shares, whether any such swap or transaction
described in clause (A) or (B) above is to be settled by delivery of
Common Shares or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (1) the Securities to be sold
hereunder or (2) Common Shares issued pursuant to any dividend
reinvestment plan.
(xi) Reporting Requirements. The Trust, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission
pursuant to the 1940 Act and the 1934 Act within the time periods
required by the 1940 Act and the Rules and Regulations and the 1934 Act
and the rules and regulations of the Commission thereunder,
respectively.
(xii) Subchapter M. The Trust will direct the investment of the
proceeds of the offering described in the Registration Statement and in
the Prospectus in such a manner as to comply with the requirements of
Subchapter M of the Code, and will use its best efforts to maintain its
qualification as a regulated investment company under Subchapter M of
the Code.
(xiii) No Manipulation of Market for Securities. The Trust will
not (a) take, directly or indirectly, any action designed to cause or
to result in, or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Trust
to facilitate the sale or resale of the Securities, and (b) until the
Closing Date, or the Date of Delivery, if any, (i) sell, bid for or
purchase the Securities or pay any person any compensation for
soliciting purchases of the Securities or (ii) pay or agree to pay to
any person any compensation for soliciting another to purchase any
other securities of the Trust.
(xiv) Rule 462(b) Registration Statement. If the Trust elects to
rely upon Rule 462(b), the Trust shall file a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) by 10:00
P.M., Washington, D.C. time, on the date of this Agreement, and the
Trust shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the 1933 Act.
SECTION 4. Payment of Expenses.
(a) Expenses. The Trust will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and
of each amendment thereto, (ii) the preparation, printing and delivery
to the Underwriters of this Agreement, any Agreement among Underwriters
and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities, (iii)
the preparation, issuance and delivery of the certificates
12
for the Securities to the Underwriters, including any stock or other
transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters, (iv) the
fees and disbursements of the Trust's counsel, accountants and other
advisors, (v) the qualification of the Securities under securities laws
in accordance with the provisions of Section 3(a)(vi) hereof, including
filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (vi) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus, Prospectus and any amendments or supplements thereto, (vii)
the preparation, printing and delivery to the Underwriters of copies of
the Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of any transfer agent or registrar for the Securities, (ix)
the filing fees incident to, and the reasonable fees and disbursements
of counsel to the Underwriters in connection with, the review by the
NASD of the terms of the sale of the Securities, (x) the fees and
expenses incurred in connection with the listing of the Securities on
the NYSE and (xi) the printing of any sales material. Also, the Trust
will pay the Underwriters $.005 per common share as partial
reimbursement of expenses incurred in connection with the offering. The
Investment Adviser has agreed to pay organizational expenses and
offering costs (other than sales load) of the Trust that exceed $.03
per Common Share.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) or (iii) hereof, the Trust and the Investment Adviser, jointly and
severally, agree that they shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations.
The obligations of the several Underwriters hereunder are subject to
the accuracy of the representations and warranties of the Trust and the
Investment Adviser contained in Section 1 hereof or in certificates of any
officer of the Trust or the Investment Adviser delivered pursuant to the
provisions hereof, to the performance by the Trust and the Investment Adviser of
their respective covenants and other obligations hereunder, and to the following
further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, shall have become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act, no notice or
order pursuant to Section 8(e) of the 1940 Act shall have been issued, and no
proceedings with respect to either shall have been initiated or to the knowledge
of the Trust or Investment Adviser threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing the Rule 430A Information shall have been filed with the
Commission in accordance with Rule 497 (or a post-effective amendment providing
such information shall have been filed and declared effective in accordance with
the requirements of Rule 430A) or, if the Trust has elected to rely upon Rule
434, a Term Sheet shall have been filed with the Commission in accordance with
Rule 497.
(b) Opinion of Counsel for Trust and the Investment Adviser. At Closing
Time, the Representatives shall have received the favorable opinions, dated as
of Closing Time, of Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz, special counsel for the
Trust and counsel for the Investment Adviser, in form and substance satisfactory
to counsel for the Underwriters, together with signed or reproduced copies of
such letters for each of the other Underwriters substantially to the effect set
forth in Exhibit A hereto. In giving such opinion such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the law of the
State of Illinois and the federal law of the United States, upon the opinions of
counsel satisfactory to the Representatives. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Trust and
certificates of public officials.
13
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters with respect to the matters set forth in paragraphs (A) (1), (2),
(4), (5) (solely as to preemptive or other similar rights arising by operation
of law or under the declaration of trust or by-laws of the Trust), (6), (7),
(8), (10), (12) (solely as to the information in the Prospectus under
"Description of Shares") and the last paragraph of Exhibit A hereto. In giving
such opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal law of
the United States, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Trust and certificates of public officials.
(d) Officers' Certificates. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Trust, whether or not arising in the ordinary course of business (except, in the
case of any Officer's Certificate delivered on any Date of Delivery in
connection with any Option Securities, for any change in net asset value of the
Trust resulting from its normal investment operations), and the Representatives
shall have received a certificate of a duly authorized officer of the Trust and
of the chief financial or chief accounting officer of the Trust and of the
President or a Vice President or Managing Director of the Investment Adviser,
dated as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Sections 1(a) and (b)
hereof are true and correct with the same force and effect as though expressly
made at and as of Closing Time, (iii) each of the Trust and the Investment
Adviser, respectively, has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to Closing Time,
and (iv) no stop order suspending the effectiveness of the Registration
Statement, or order of suspension or revocation of registration pursuant to
Section 8(e) of the 1940 Act, has been issued and no proceedings for any such
purpose have been instituted or are pending or to the knowledge of the Trust or
Investment Adviser are contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Ernst & Young LLP a
letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from Ernst & Young LLP a letter, dated as of Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time.
(g) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on the NYSE, subject only to official notice of
issuance.
(h) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(i) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Trust contained herein and the statements in any certificates furnished
by the Trust hereunder shall be true and correct as of each Date of Delivery
and, at the relevant Date of Delivery, the Representatives shall have received:
14
(i) Officers' Certificates. Certificates, dated such Date of
Delivery, of a duly authorized officer of the Trust and of the chief
financial or chief accounting officer of the Trust and of the President
and a Vice President or Managing Director of the Investment Adviser
confirming that the information contained in the certificate delivered
by each of them at the Closing Time pursuant to Section 5(d) hereof
remains true and correct as of such Date of Delivery.
(ii) Opinions of Counsel for the Trust and the Investment Adviser.
The favorable opinion of Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz, special
counsel for the Trust and counsel for the Investment Adviser, in form
and substance reasonably satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(b) hereof.
(iii) Opinion of Counsel for the Underwriters. The favorable
opinion of ▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(c) hereof.
(iv) Bring-down Comfort Letter. A letter from Ernst & Young LLP,
in form and substance satisfactory to the Representatives and dated
such Date of Delivery, substantially in the same form and substance as
the letter furnished to the Representatives pursuant to Section 5(f)
hereof, except that the "specified date" in the letter furnished
pursuant to this paragraph shall be a date not more than five days
prior to such Date of Delivery.
(j) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Trust and the Investment Adviser in connection with the
organization and registration of the Trust under the 1940 Act and the issuance
and sale of the Securities as herein contemplated shall be satisfactory in form
and substance to the Representatives and counsel for the Underwriters.
(k) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option
Securities, on a Date of Delivery which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the Trust at
any time at or prior to Closing Time or such Date of Delivery, as the case may
be, and such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 1, 6, 7, 8 and 13
shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Trust and the Investment
Adviser, jointly and severally, agree to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or the
omission
15
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(e) below) any such settlement is effected
with the written consent of the Trust; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇
▇▇▇▇▇), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information furnished to the Trust or the Investment
Adviser by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) and
provided further that the Trust will not be liable to any Underwriter with
respect to any indemnification contained in this paragraph (a) to the extent
that the Trust shall sustain the burden of proving that any such loss,
liability, claim, damage or expense resulted from the fact that such
Underwriter, in contravention of a requirement of this Agreement or applicable
law, sold Securities to a person to whom such Underwriter failed to send or
give, at or prior to the Closing Time or the Date of Delivery, as the case may
be, a copy of the Prospectus, as then amended or supplemented if: (i) the Trust
has previously furnished copies thereof (sufficiently in advance of the Closing
Time or the Date of Delivery, as the case may be, to allow for distribution by
the Closing Time or the Date of Delivery, as the case may be) to the Underwriter
and the loss, liability, claim, damage or expense of such Underwriter resulted
from an untrue statement or omission of a material fact contained in or omitted
from the preliminary prospectus which was corrected in the Prospectus as, if
applicable, amended or supplemented prior to the Closing Time or the Date of
Delivery, as the case may be, and such Prospectus was required by law to be
delivered at or prior to the written confirmation of sale to such person and
(ii) the failure to give or send such Prospectus by the Closing Time or the Date
of Delivery, as the case may be, to such person would have constituted the sole
basis for the claim asserted by such person against the party or parties
asserting such loss, liability, claim, damage or expense as to which
indemnification is sought pursuant to this paragraph (a).
(b) Indemnification of Trust, Investment Adviser, Trustees, Directors
and Officers. Each Underwriter severally agrees to indemnify and hold harmless
the Trust and the Investment Adviser, their respective trustees, directors, each
of the Trust's officers who signed the Registration Statement, and each person,
if any, who controls the Trust or the Investment Adviser within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration
16
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with information furnished to the Trust or the Investment Adviser by
such Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Indemnification for Marketing Materials. In addition to the
foregoing indemnification, the Trust and the Investment Adviser also, jointly
and severally, agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section 6(a),
as limited by the proviso set forth therein, with respect to any sales material
prepared by the Trust or the Investment Adviser.
(d) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement of such
action, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, to assume the defense thereof with counsel
satisfactory to such indemnified party, and after notice from the indemnifying
party to the indemnified party of its election to assume the defense thereof,
the indemnifying party shall not be liable to the indemnified party for any
legal expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation. In any such action where the
indemnifying party does not assume the defense thereof, in the case of parties
indemnified pursuant to Section 6(a) above, counsel to the indemnified parties
shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified
pursuant to Section 6(b) above, counsel to the indemnified parties shall be
selected by the Trust and the Investment Adviser. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(e) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such
17
settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to the
date of such settlement.
(f) Indemnification by the Trust. Any indemnification by the Trust
shall be subject to the requirements and limitations of Section 17(i) of the
1940 Act.
SECTION 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Trust and the Investment Adviser
on the one hand and the Underwriters on the other hand from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Trust and the Investment Adviser on the
one hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Trust and the Investment Adviser
on the one hand and the Underwriters on the other hand in connection with the
offering of the Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
the Securities pursuant to this Agreement (before deducting expenses) received
by the Trust and the total underwriting discount received by the Underwriters
(whether from the Trust or otherwise), in each case as set forth on the cover of
the Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet, bear to the aggregate initial public offering price of the Securities as
set forth on such cover.
The relative fault of the Trust and the Investment Adviser on the one
hand and the Underwriters on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Trust or the Investment Adviser or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Trust, the Investment Adviser and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to
18
contribution as such Underwriter, and each trustee of the Trust, each director
of the Investment Adviser, each officer of the Trust who signed the Registration
Statement, and each person, if any, who controls the Trust or the Investment
Adviser, within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Trust and the
Investment Adviser, respectively. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the number of
Initial Securities set forth opposite their respective names in Schedule A
hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Trust or the Investment Adviser
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Trust or the Investment Adviser,
and shall survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Trust, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Trust or the Investment
Adviser, whether or not arising in the ordinary course of business, or (ii) if
there has occurred any material adverse change in the financial markets in the
United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representatives, impracticable or
inadvisable to market the Securities or to enforce contracts for the sale of the
Securities, or (iii) if trading in the Common Shares of the Trust has been
suspended or materially limited by the Commission or the NYSE, or if trading
generally on the American Stock Exchange or the NYSE or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the NASD
or any other governmental authority, or a material disruption has occurred in
commercial banking or securities settlement or clearance services in the United
States, or (iv) if a banking moratorium has been declared by either Federal or
New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7, 8 and 13 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at Closing Time or a Date
of Delivery to purchase the Securities which it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the Representatives
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not
19
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date, this Agreement or, with respect to any
Date of Delivery which occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Trust to sell the Option Securities to be
purchased and sold on such Date of Delivery shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Trust to sell the relevant Option Securities,
as the case may be, either the Representatives or the Trust shall have the right
to postpone Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be directed to the
Representatives, c/o Merrill ▇▇▇▇▇ & Co., ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of Equity Capital Markets; and notices to
the Trust or the Investment Adviser shall be directed, as appropriate, to the
office of Calamos Asset Management, Inc. at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
SECTION 12. Parties.
This Agreement shall each inure to the benefit of and be binding upon
the Underwriters, the Trust, the Investment Adviser and their respective
partners and successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Trust, the Investment Adviser and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Trust, the Investment Adviser and their respective partners
and successors, and said controlling persons and officers and directors and
their heirs and legal representatives, and for the benefit of no other person,
firm or corporation. No purchaser of Securities from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN SAID STATE. UNLESS OTHERWISE EXPLICITLY PROVIDED, SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Underwriters, the Trust and the Investment Adviser in accordance with its
terms.
Very truly yours,
Calamos Convertible Opportunities
and Income Fund
By:
------------------------------
Name:
Title:
Calamos Asset Management, Inc.
By:
------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
MRRILL LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
UBS Warburg LLC
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
First Union Securities, Inc.
Advest, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated
McDonald Investments Inc., a KeyCorp Company
▇▇▇▇▇▇▇▇, Inc.
Wedbush ▇▇▇▇▇▇ Securities
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
---------------------------------------------
Authorized Signatory
For themselves and as
Representatives of the
other Underwriters named
in Schedule A hereto.
21
SCHEDULE A
Name of Underwriter Initial Securities
------------------- ------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated..................................
UBS Warburg LLC........................................... [ ]
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. ................................... [ ]
First Union Securities, Inc. ............................. [ ]
Advest, Inc. ............................................. [ ]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC............................... [ ]
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated...................... [ ]
McDonald Investments Inc., a KeyCorp Company.............. [ ]
▇▇▇▇▇▇▇▇, Inc. ........................................... [ ]
Wedbush ▇▇▇▇▇▇ Securities................................. [ ]
Total............................................ [ ]
==============
Sch A-1
SCHEDULE B
CALAMOS CONVERTIBLE OPPORTUNITIES AND INCOME Fund
[ ] Common Shares of Beneficial Interest
(No Par Value Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $15.00.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $14.325, being an amount equal to the initial
public offering price set forth above less $0.675 per share; provided that the
purchase price per share for any Option Securities purchased upon the exercise
of the over-allotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the Trust
and payable on the Initial Securities but not payable on the Option Securities.
Sch B-1
Exhibit A
FORM OF OPINION OF TRUST'S AND INVESTMENT ADVISER'S
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(A) With respect to the Trust:
Based upon and subject to the qualifications, assumptions and limitations set
forth herein, we are of the opinion that:
(1) The Trust has been duly formed and is validly existing as a
business trust in good standing under the laws of the State of Delaware.
(2) The Trust has business trust power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
(3) The authorized, issued and outstanding Shares of the Trust is as
set forth in the Prospectus under the caption "Description of Shares - Common
Shares" (except for subsequent issuances, if any, pursuant to the Purchase
Agreement); all such issued and outstanding Shares of the Trust have been duly
authorized and validly issued and are fully paid and non-assessable. The
outstanding Shares of the Trust conform in all material respects as to legal
matters to all statements relating thereto contained in the Prospectus and such
description conforms in all material respects as to legal matters to the rights
set forth in the Organizational Documents defining the same; and none of the
outstanding Shares of the Trust was issued in violation of any statutory or, to
our knowledge, contractual preemptive rights of any securityholder of the Trust.
(4) The Shares to be purchased by the Underwriters from the Trust have
been duly authorized for issuance and sale to the Underwriters pursuant to the
Purchase Agreement and, when issued and delivered by the Trust pursuant to the
Purchase Agreement against payment of the consideration set forth in the
Purchase Agreement, will be validly issued and fully paid and non-assessable and
no holder of the Shares is or will be subject to personal liability solely by
reason of being such a holder.
(5) The issuance of the Shares pursuant to the Purchase Agreement is
not subject to any statutory or, to our knowledge, contractual preemptive rights
of any securityholder of the Trust.
(6) The Purchase Agreement and Trust Agreements have each been duly
authorized by all requisite business trust action on the part of the Trust, have
each been executed and delivered on behalf of the Trust, and each constitutes a
valid and binding agreement of the Trust, enforceable against the Trust in
accordance with its terms.
(7) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required filing
of the Prospectus pursuant to Rule 497 has been made in the manner and within
the time period required by Rule 497; and, to our knowledge, no stop order
suspending the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act, and, to our
knowledge, no order of suspension or revocation of registration pursuant to
Section 8(e) of the 1940 Act has been issued, and to our knowledge no
proceedings for any such purpose have been instituted or are pending or overtly
threatened in writing by the Commission.
A-1
(8) The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, the Prospectus and each amendment or supplement to the Registration
Statement and Prospectus as of their respective effective or issue dates (other
than the financial statements, supporting schedules and financial data included
therein or omitted therefrom and statistical information derived from such
financial statements, supporting schedules or other financial data, as to which
we express no opinion), and the notification on Form N-8A complied as to form in
all material respects with the requirements of the 1933 Act, the 1940 Act and
the Rules and Regulations.
(9) If Rule 434 has been relied upon, the Prospectus was not
"materially different," as such term is used in Rule 434, from the prospectus
included in the Registration Statement at the time it became effective.
(10) The form of certificate used to evidence the Shares complies in
all material respects with any applicable requirements of the laws of the State
of Delaware, the Organizational Documents and the New York Stock Exchange.
(11) To our knowledge, there is not pending or overtly threatened in
writing any action, suit, proceeding, inquiry or investigation, to which the
Trust is a party, or to which the property of the Trust is subject, before or
brought by any court or governmental agency or body, which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties or assets of the
Trust or the performance by the Trust of its obligations under the Purchase
Agreement.
(12) The information in the Prospectus under "Description of Shares"
and "Tax Matters" and in the Registration Statement under Item 29
(Indemnification), to the extent that it constitutes matters of law, or
summaries of legal matters, the Trust's Organizational Documents, matters of law
relating to legal proceedings, or legal conclusions, has been reviewed by us and
is correct in all material respects.
(13) Each of the Trust Agreements and the Purchase Agreement comply as
to form in all material respects with the applicable provisions of the 1940 Act,
Advisers Act, the Rules and Regulations and the Advisers Act Rules and
Regulations.
(14) The Trust is registered with the Commission under the 1940 Act as
a closed-end diversified management investment company. To our knowledge, no
order of suspension or revocation of such registration has been issued or
proceedings therefor initiated or overtly threatened in writing by the
Commission.
(15) To our knowledge, no person is serving as an officer, trustee or
investment adviser of the Trust except in accordance with the 1940 Act and the
Rules and Regulations and the Investment Advisers Act and the Advisers Act Rules
and Regulations. Except as disclosed in the Registration Statement and
Prospectus (or any amendment or supplement to either of them), to our knowledge,
no trustee of the Trust is an "interested person" (as defined in the ▇▇▇▇ ▇▇▇)
of the Trust or an "affiliated person" (as defined in the ▇▇▇▇ ▇▇▇) of an
Underwriter.
(16) There are no statutes or regulations that are required under the
1940 Act or 1933 Act to be described in the Prospectus that are not described as
required in all material respects.
(17) All descriptions in the Registration Statement of the Transaction
Documents, insofar as they relate to the Trust, are accurate in all material
respects.
A-2
(18) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency of the United States of America or the State of Illinois or
Delaware (other than: (i) the absence of which, either individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect;
(ii) such as have been obtained; or (iii) such as may be required under the
securities or blue sky laws of the various states, as to each of which we
express no opinion) is necessary or required in connection with the due
authorization, execution and delivery of the Purchase Agreement or for the
offering, issuance or sale of the Shares or the performance by the Trust of its
obligations under the Purchase Agreement.
(19) The execution and delivery of, and performance by the Trust of its
obligations under the Purchase Agreement (including the issuance and sale of the
Shares and the use of the proceeds from the sale of the Shares as described in
the Prospectus under the caption "Use of Proceeds") do not and will not, whether
with or without the giving of notice or lapse of time or both, violate or
constitute a breach of, or default or Repayment Event under or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Trust pursuant to any material contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or any other agreement or
instrument to which the Trust is a party or by which it may be bound, or to
which any of the property or assets of the Trust is subject and which, in each
case, are described or referred to in the Registration Statement or filed as
exhibits thereto, nor will such action result in any violation of the provisions
of the Organizational Documents, or any applicable material federal, State of
Illinois or State of Delaware law, statute, rule, regulation or any judgment,
order, writ or decree, known to us, of any governmental authority or
administrative agency of the United States of America, the State of Illinois or
the State of Delaware.
(B) With respect to the Investment Adviser:
Based upon and subject to the qualifications, assumptions and limitations set
forth herein, we are of the opinion that:
(1) The Adviser is validly existing as a corporation in good standing
under the laws of the State of Illinois.
(2) The Adviser has full corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
(3) The Adviser is 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 Rules and Regulations
from acting under the Management Agreement or the Administration Agreement as
contemplated by the Prospectus.
(4) The Purchase Agreement, the Management Agreement and the
Administration Agreement have been duly authorized by all requisite corporate
action on the part of the Adviser, have each been executed and delivered on
behalf of the Adviser and each constitutes a valid and binding obligation of the
Adviser, enforceable against the Adviser in accordance with its terms.
(5) To our knowledge, there is not pending or overtly threatened in
writing any action, suit, proceeding, inquiry or investigation, to which the
Adviser is a party, or to which the property of the Adviser is subject, before
or brought by any court or governmental agency or body, which might reasonably
be expected to result in any material adverse change on the condition, financial
or otherwise, in the earnings, business affairs or business prospects of the
Adviser, materially and adversely affect the properties or assets of the Adviser
or materially impair or adversely affect the ability of the Adviser to function
as an investment adviser or perform its obligations under the Management
Agreement or the
A-3
Administration Agreement, or which is required to be disclosed in the
Registration Statement or the Prospectus.
(6) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency of the United States of America or the State of Illinois
(other than (i) under the 1933 Act, the 1940 Act and the Rules and Regulations;
(ii) such as have been obtained; and (iii) as may be required under the
securities or blue sky laws of the various states, as to each of which we
express no opinion) is necessary or required in connection with the performance
by the Adviser of its obligations under the Purchase Agreement.
(7) The execution and delivery of the Purchase Agreement by the
Adviser, and performance by the Adviser of its obligations thereunder do not and
will not, whether with or without the giving of notice or lapse of time or both,
violate or constitute a breach of, or default or Repayment Event under or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Adviser pursuant to any material contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
material agreement or instrument known to us and to which the Adviser is a party
or by which it may be bound, or to which any of the property or assets of the
Adviser is subject (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a Material Adverse Effect on the
Investment Adviser), nor will such action result in any violation of the
provisions of the Organizational Documents of the Adviser, or any applicable
material federal or State of Illinois law, statute, rule, regulation, or any
judgment, order, writ or decree, known to us, of any governmental authority or
administrative agency of the United States of America or the State of Illinois.
In addition, we have participated in the preparation of the Registration
Statement and the Prospectus and participated in discussions with certain
officers, trustees and employees of the Trust, representatives of the
independent accountants of the Trust who examined the statement of assets and
liabilities of the Trust included or incorporated by reference in the
Registration Statement and the Prospectus, and the Underwriters and counsel for
the Underwriters and we have reviewed certain Trust records and documents. While
we have not independently verified and are not passing upon, and do not assume
any responsibility for, the accuracy, completeness or fairness of the
information contained in the Registration Statement and the Prospectus, except
to the limited extent necessary to enable us to give the opinions with respect
to the Trust in paragraphs 3, 12 and 17 on the basis of such participation and
review, nothing has come to our attention that would lead us to believe that the
Registration Statement (except for financial statements, supporting schedules
and other financial data included therein or omitted therefrom and for
statistical information derived from such financial statements, supporting
schedules or other financial data, as to which we do not express any belief), at
the time such Registration Statement became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus (except for financial statements, supporting schedules and
other financial data included therein or omitted therefrom and for statistical
information derived from such financial statements, supporting schedules or
other financial data, as to which we do not express any belief), at the time the
Prospectus was issued, or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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