Exhibit (h)
CC Draft 3/31/04
The Gabelli Global Utility & Income Trust
(a Delaware statutory trust)
[ ] Common Shares of Beneficial Interest
($0.001 Par Value)
FORM OF PURCHASE AGREEMENT
April [ ], 2004
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Gabelli & Company, Inc.
[other managing underwriters]
c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The Gabelli Global Utility & Income Trust, a Delaware statutory trust (the
"Fund"), and the Fund's investment adviser, Gabelli Funds, LLC, a New York
limited liability company (the "Investment Adviser"), confirm their agreement
with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
("▇▇▇▇▇▇▇ ▇▇▇▇▇"), Gabelli & Company, Inc. [other managing underwriters] 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇, Gabelli &
Company, Inc. [other managing underwriters] are acting as representatives (in
such capacity, the "Representatives"), with respect to the issue and sale by
the Fund and the purchase by the Underwriters, acting severally and not
jointly, of the respective number of common shares of beneficial interest,
$0.001 par value, of the Fund ("Common Shares") set forth in said Schedule A,
and with respect to the grant by the Fund 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
overallotments, 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 Fund 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 Fund has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form N-2 (No. 333-113621 and No.
811-21529) 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 Fund 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 Fund 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 Fund 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 and 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 [ ], 2004 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 Fund and the Investment
Adviser. The Fund 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
preliminary prospectus included as part of the registration statement
as originally filed or as part of any amendment or supplement
thereto, or filed pursuant to Rule 497 of the 1933 Act Rules and
Regulations, complied when so filed in all material respects with the
provisions of the 1933 Act, the 1940 Act and the Rules and
Regulations. The Commission has not issued any order preventing or
suspending the use of any preliminary prospectus.
The Registration Statement in the form in which it became or
becomes effective and also in such form as it may be when any post
effective amendment thereto shall become effective and the Prospectus
and any amendment or supplement thereto when filed with the
Commission under Rule 497 of the 1933 Act Rules and Regulations and
the 1940 Act notification when originally filed with the Commission
and any amendment or supplement thereto when filed with the
Commission, complied or will comply in all material respects with the
provisions of the 1933 Act, the 1940 Act and the Rules and
Regulations. No stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has
been issued under the 1933 Act. No order of suspension or revocation
or 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 Fund or the Investment Adviser, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with and did
not or will not at any such times contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
except that this representation and warranty does not apply to
statements in or omissions from the Registration Statement or the
Prospectus (or any amendment or supplement thereto) made in reliance
upon and in conformity with information relating to any Underwriter
furnished to the Fund in writing by or on behalf of any Underwriter
through you expressly for use therein.
The Fund has filed in a timely manner each document or
report required to be filed by it pursuant to the 1934 Act and the
rules and regulations of Commission promulgated thereunder (the "1934
Act Rules and Regulations"); each such document or report at the time
it was filed conformed to the requirements of the 1934 Act and the
1934 Act Rules and Regulations; and none of such documents or reports
contained an untrue statement of any material fact or omitted to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497
under the Rules and Regulations, has taken all required action under
the 1933 Act, the 1940 Act and the Rules and Regulations to make the
public offering and consummate the sale of the Common Shares as
contemplated by this Agreement.
(ii) Independent Accountants. The accountants,
PricewaterhouseCoopers LLP, who have audited and certified or shall
audit and certify the financial statements included or incorporated
by reference in the Registration Statement and the Prospectus (or any
amendment or supplement to either of them) are independent public
accountants as required by the 1933 Act, the 1940 Act and the Rules
and Regulations.
(iii) Financial Statements. The financial statements,
together with related schedules and notes, included or incorporated
by reference in the Registration Statement and the Prospectus (and
any amendment or supplement to either of them), present fairly the
financial position, results of operations and changes in financial
position of the Fund on the basis stated or incorporated by reference
in the Registration Statement and the Prospectus at the respective
dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein;
and the other financial information and data included in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them) are accurately presented and prepared
on a basis consistent with such financial statements and the books
and records of the Fund.
(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.
(v) No Material Adverse Change. Except as disclosed in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them), subsequent to the respective dates as
of which such information is given in the Registration Statement and
the Prospectus (and any amendment or supplement to either of them),
the Fund has not incurred any liability or obligation, direct or
contingent, or entered into any transaction, not in the ordinary
course of business, that is material to the Fund, and there has not
been any change in the capital stock, or any dividend or distribution
of any kind declared, paid or made by the Fund on any class of its
capital shares, or material increase in the short term debt or long
term debt, of the Fund, or any material adverse change, or any
development involving or which may reasonably be expected to involve,
a prospective material adverse change, in the condition (financial or
other), business, prospects, properties, net assets or results of
operations of the Fund, whether or not arising in the ordinary course
of business ("Material Adverse Effect").
(vi) Good Standing of the Fund. The Fund is a statutory
trust duly organized and validly existing in good standing under the
laws of the State of Delaware, with full trust power and authority to
own, lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus (and any
amendment or supplement to either of them) and to enter into and
perform its obligations under this Agreement, and is duly registered
and qualified as a foreign statutory trust to conduct its business
and is in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to
register or qualify does not have a Material Adverse Effect on the
condition (financial or other), business, prospects, properties, net
assets or results of operations of the Fund.
(vii) No Subsidiaries. The Fund has no subsidiaries.
(viii) Investment Company Status. The Fund is duly
registered under the 1940 Act as a closed-end non-diversified
management investment company and the 1940 Act notification has been
duly filed with the Commission and, at the time of filing thereof and
any amendment or supplement thereto, conformed in all material
respects with all applicable provisions of the 1940 Act and the Rules
and Regulations, and no order of suspension or revocation of such
registration has been issued or proceedings therefore initiated or
threatened by the Commission. The Fund is, and at all times through
the completion of the transactions contemplated hereby, will be, in
compliance in all material respects with the terms and conditions of
the 1933 Act and the 1940 Act.
(ix) Officers and Trustees. To the best knowledge of each of
the Fund and the Investment Adviser, no person is serving as an
officer, trustee or investment adviser of the Fund except in
accordance with the 1940 Act and the 1940 Act 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), no trustee of the
Fund is an "interested person" (as defined in the ▇▇▇▇ ▇▇▇) of the
Fund or an "affiliated person" (as defined in the ▇▇▇▇ ▇▇▇) of any
Underwriter. No person is serving or acting as an officer, trustee or
investment adviser of the Fund except in accordance with the
provisions of the 1940 Act and the 1940 Act Rules and Regulations and
the Advisers Act and the Advisers Act Rules and Regulations.
(x) Capitalization and Authorization of Securities. The
authorized, issued and outstanding shares of beneficial interest of
the Fund is as set forth in the Prospectus. All the issued and
outstanding shares of capital stock of the Fund have been duly
authorized and validly issued, are fully paid and nonassessable and
are free of any preemptive or similar rights; the Common Shares have
been duly authorized and, when issued and delivered to the
Underwriters against payment therefor in accordance with the terms
hereof, will be validly issued, fully paid and nonassessable and free
of any preemptive or similar rights and will conform to the
description thereof in the Registration Statement and the Prospectus
(and any amendment or supplement to either of them). No holder of the
Securities will be subject to personal liability by reason of being
such a holder. The capital stock of the Fund conforms to the
description thereof in the Registration Statement and the Prospectus
(and any amendment or supplement to either of them).
(xi) Compliance With Governing Documents and Law. The Fund
is not in violation of its Agreement and Declaration of Trust or
by-laws, or other organizational documents, or of any law, ordinance,
administrative or governmental rule or regulation applicable to the
Fund or of any decree of the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or governmental agency, body or official having
jurisdiction over the Fund, or in default in any material respect in
the performance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, bond,
debenture, note or any other evidence of indebtedness or in any
contract required to be included as an exhibit to the Registration
Statement (each, a "Material Fund Agreement"); and the execution,
delivery and performance of this Agreement, the Investment Advisory
Agreement, the Administration Agreement, the Custodian Agreement and
the Transfer Agency and Service Agreement referred to in the
Registration Statement (as used herein, the "Investment Advisory
Agreement," the "Administration Agreement," the "Custodian Agreement"
and the "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 compliance by the Fund with 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, conflict with 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 Fund pursuant to, such agreements (except
for such conflicts, 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
agreement and declaration of trust or by-laws of the Fund, each as
amended from time to time, 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 Fund or any of its assets, properties or
operations. 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 Fund.
(xii) Absence of Proceedings. There are no inquiries,
investigations or legal or governmental proceedings pending or
threatened, against the Fund, or to which the Fund or any of its
properties is subject, that are required to be described in the
Registration Statement or the Prospectus (and any amendment or
supplement to either of them) but are not described as required, and
there are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Registration
Statement or the Prospectus (and any amendment or supplement to
either of them) or to be filed as an exhibit to the Registration
Statement that are not described or filed as required by the 1933
Act, the 1940 Act or the Rules and Regulations.
(xiii) Possession of Intellectual Property. The conduct by
the Fund of its business (as described in the Prospectus) does not
require it to be the owner, possessor or licensee of any patents,
patent licenses, trademarks, service marks or trade names which it
does not own, possess or license ("Intellectual Property"), and the
Fund has not received any notice or is not 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 Fund 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.
(xiv) Absence of Further Requirements. Neither the issuance
and sale of the Common Shares, the execution, delivery or performance
of this Agreement or any of the Investment Advisory Agreement, the
Custodian Agreement and the Transfer Agency Agreement (the "Fund
Agreements") by the Fund, nor the consummation by the Fund of the
transactions contemplated hereby or thereby (A) requires any consent,
approval, authorization or other order of or registration or filing
with, the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court, regulatory
body, administrative agency or other governmental body, agency or
official (except such as may have been obtained prior to the date
hereof and such as may be required for compliance with the state
securities or blue sky laws of various jurisdictions which have been
or will be effected in accordance with this Agreement) or conflicts
or will conflict with or constitutes or will constitute a breach of,
or a default under, the Agreement and Declaration of Trust, including
the Statement of Preferences, or by-laws, or other organizational
documents, of the Fund or (B) conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, any
agreement, indenture, lease or other instrument to which the Fund is
a party or by which it or any of its properties may be bound, or
violates or will violate any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Fund or any
of its properties, or will result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Fund pursuant to the terms of any agreement or instrument to which it
is a party or by which it may be bound or to which any of its
property or assets is subject. The Fund is not subject to any order
of any court or of any arbitrator, governmental authority or
administrative agency.
(xv) Advertisements. All advertising, sales literature or
other promotional material (including "prospectus wrappers," "broker
kits," "road show slides" and "road show scripts"), whether in
printed or electronic form, authorized in writing by or prepared by
the Fund or the Investment Adviser for use in connection with the
offering and sale of the Common Shares (collectively, "sales
material") complied and 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 NASD and no such
sales material contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading.
(xvi) Subchapter M. At all times since its inception, as
required by Subchapter M of the Code, the Fund has complied with the
requirements of Subchapter M and intends to qualify as a regulated
investment company under the Code.
(xvii) Distribution of Offering Materials. The Fund has not
distributed and, prior to the later to occur of (A) the Closing Date
and (B) completion of the distribution of the Common Shares, will not
distribute any offering material in connection with the offering and
sale of the Common Shares other than the Registration Statement, any
preliminary prospectus, the Prospectus or other materials, if any,
permitted by the 1933 Act, the 1940 Act or the Rules and Regulations.
(xviii) Accounting Controls. The Fund maintains and will
maintain a system of internal accounting controls sufficient to
provide reasonable assurances that (A) transactions are executed in
accordance with management's general or specific authorization and
with the investment policies and restrictions of the Fund and with
the applicable requirements of the 1940 Act, the 1940 Act Rules and
Regulations and the Internal Revenue Code of 1986, as amended (the
"Code"); (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles, to calculate net asset value, and to
maintain accountability for assets and to maintain compliance with
the books and records requirements under the 1940 Act and the 1940
Act Rules and Regulations; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and
(D) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(xix) Absence of Undisclosed Payments. To the Fund's
knowledge, except as disclosed in the Prospectus, neither the Fund
nor any employee or agent of the Fund has made any payment of funds
of the Fund or received or retained any funds, which payment, receipt
or retention of funds is of a character required to be disclosed in
the Prospectus.
(xx) Material Agreements. The execution and delivery of, and
the performance by the Fund of its obligations under, this Agreement
and the Fund Agreements have been duly and validly authorized by the
Fund, and this Agreement and the Fund Agreements have been duly
executed and delivered by the Fund and constitute the valid and
legally binding agreements of the Fund, enforceable against the Fund
in accordance with their terms, except as rights to indemnity and
contribution hereunder and thereunder may be limited by federal or
state securities laws. Each of the Fund Agreements and the Fund's and
the Investment Adviser's obligations under this Agreement and each of
the Fund Agreements comply in all material respects with all
applicable provisions of the 1940 Act, the 1940 Act Rules and
Regulations, the Advisers Act the Advisers Act Rules and Regulations.
(xxi) Registration Rights. No holder of any security of the
Fund has any right to require registration of any shares of capital
stock or any other security of the Fund because of the filing of the
Registration Statement or consummation of the transactions
contemplated by this Agreement.
(xxii) NYSE Listing. The Securities have been duly
authorized for listing, upon notice of issuance, on the New York
Stock Exchange ("NYSE") and the Fund's registration statement on Form
8-A under the 1934 Act been filed.
(xxiii) Taxes. The Fund has filed all tax returns required
to be filed, which returns are complete and correct, and the Fund is
not in material default in the payment of any taxes which were
payable pursuant to said returns or any assessments with respect
thereto.
(xxiv) Market Stabilization Activities. Except as stated in
this Agreement and in the Prospectus (and any amendment or supplement
thereto), the Fund has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any securities issued by the Fund to facilitate the sale or
resale of the Common Shares, and the Fund is not aware of any such
action taken or to be taken by any affiliates of the Fund.
(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 is a limited liability company duly organized and validly
existing in good standing under the laws of the State of New York,
with full limited liability company power and authority to own, lease
and operate its properties and to conduct its business as described
in the Registration Statement and the Prospectus (and any amendment
or supplement to either of them), and is duly registered and
qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification,
except where the failure so to register or to qualify does not have a
material adverse effect on the condition (financial or other),
business, prospects, properties, net assets or results of operations
of the Investment Adviser and its subsidiaries, taken as a whole, or
on the ability of the Investment Adviser to perform its obligations
under this Agreement and the Investment Advisory Agreement.
(ii) Investment Adviser Status. The Investment Adviser is
duly registered with the Commission as an investment adviser under
the Advisers Act and is not prohibited by the Advisers Act, the
Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act
Rules and Regulations from acting under the Investment Advisory
Agreement for the Fund as contemplated by the Prospectus (or any
amendment or supplement thereto). There does not exist any proceeding
or any facts or circumstances the existence of which could lead to
any proceeding which might adversely affect the registration of the
Investment Adviser with the Commission.
(iii) Description of the Investment Adviser. The description
of the Investment Adviser in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) complied and
comply in all material respects with the provisions the 1933 Act, the
1940 Act, the Advisers Act, the Rules and Regulations and the
Advisers Act Rules and Regulations and did not and will not contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
(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 (or
any amendment or supplement thereto) and under this Agreement and the
Investment Advisory Agreement.
(v) Authorization. The execution and delivery of, and the
performance by the Investment Adviser of its obligations under, this
Agreement, the Investment Advisory Agreement, and the Additional
Compensation Agreements have been duly and validly authorized by the
Investment Adviser, and this Agreement and the Investment Advisory
Agreement have been duly executed and delivered by the Investment
Adviser and each constitutes the valid and legally binding agreement
of the Investment Adviser, enforceable against the Investment Adviser
in accordance with its terms except as rights to indemnity and
contribution hereunder may be limited by federal or state securities
laws.
(vi) Absence of Proceedings. There are no legal or
governmental proceedings pending or, to the knowledge of the
Investment Adviser, threatened against the Investment Adviser, or to
which the Investment Adviser or any of its properties is subject,
that are required to be described in the Registration Statement or
the Prospectus (or any amendment or supplement to either of them) but
are not described as required or that may reasonably be expected to
involve a prospective material adverse change, in the condition
(financial or other), business, prospects, properties, net assets or
results of operations of the Investment Adviser and its subsidiaries,
taken as a whole, or on the ability of the Investment Adviser to
perform its obligations under this Agreement and the Investment
Advisory Agreement.
(vii) Absence of Violation or Default. The Investment
Adviser is not in violation of its articles of organization, by-laws
or other organizational documents or in default under any agreement,
indenture or instrument, where such violation or default would
reasonably be expected to have a material adverse effect on the
ability of the Investment Adviser to function as an investment
adviser or perform its obligations under the Investment Advisory
Agreement.
(viii) Absence of Required Approvals and Conflicts. Neither
the execution, delivery or performance of this Agreement or the
Investment Advisory Agreement by the Investment Adviser, nor the
consummation by the Investment Adviser of the transactions
contemplated hereby or thereby (A) requires the Investment Adviser to
obtain any consent, approval, authorization or other order of or
registration or filing with, the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court, regulatory body, administrative agency or
other governmental body, agency or official or conflicts or will
conflict with or constitutes or will constitute a breach of or a
default under the operating agreement or by-laws, or other
organizational documents of the Investment Adviser or (B) conflicts
or will conflict with or constitutes or will constitute a breach of
or a default under, any agreement, indenture, lease or other
instrument to which the Investment Adviser is a party or by which it
or any of its properties may be bound, or violates or will violate
any statute, law, regulation or filing or judgment, injunction, order
or decree applicable to the Investment Adviser or any of its
properties or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Investment
Adviser pursuant to the terms of any agreement or instrument to which
it is a party or by which it may be bound or to which any of the
property or assets of the Investment Adviser is subject. The
Investment Adviser is not subject to any order of any court or of any
arbitrator, governmental authority or administrative agency except
for (1) an Order of the Securities and Exchange Commission, dated
August 17, 1988 and (2) an Order of the Federal Communications
Commission, dated August 21, 1992.
(ix) Absence of Undisclosed Liabilities. Except as disclosed
in the Registration Statement and the Prospectus (or any amendment or
supplement to either of them), subsequent to the respective dates as
of which such information is given in the Registration Statement and
the Prospectus (or any amendment or supplement to either of them),
the Investment Adviser has not incurred any liability or obligation,
direct or contingent, or entered into any transaction, not in the
ordinary course of business, that is material to the Investment
Adviser and its subsidiaries, taken as a whole, and that is required
to be disclosed in the Registration Statement or in the Prospectus
and there has not been any material adverse change, or any
development involving or which may reasonably be expected to involve,
a prospective material adverse change, in the condition (financial or
other), business, prospects, properties, net assets or results of
operations of the Investment Adviser and its subsidiaries, taken as a
whole, whether or not arising in the ordinary course of business, or
which, in each case, may reasonably be expected to have a material
adverse effect on the ability of the Investment Adviser to perform
its obligations under this Agreement and the Investment Advisory
Agreement.
(x) Permits and Licenses. The Investment Adviser has such
permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("permits") as are necessary to own its
properties and to conduct its business in the manner described in the
Prospectus (and any amendment or supplement thereto); the Investment
Adviser has fulfilled and performed all its material obligations with
respect to such permits and no event has occurred which allows, or
after notice or lapse of time would allow, revocation or termination
thereof or results in any other material impairment of the rights of
the Investment Adviser under any such permit; and, except as
described in the Prospectus (and any amendment or supplement
thereto), none of such permits contains any restriction that is
materially burdensome to the Investment Adviser.
(xi) Market Stabilization Activities. Except as stated in
this Agreement and in the Prospectus (and in any amendment or
supplement thereto), the Investment Adviser has not taken, nor will
it take, directly or indirectly, any action designed to or which
might reasonably be expected to cause or result in, stabilization or
manipulation of the price of any securities issued by the Fund to
facilitate the sale or resale of the Common Shares, and the
Investment Adviser is not aware of any such action taken or to be
taken by any affiliates of the Investment Adviser; it being
understood that the Underwriters include certain affiliates of the
Investment Adviser and that stabilization or other activity by you
shall not be deemed to be violative of this representation.
(xii) 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 ability of the Investment Adviser to
perform its obligations under this Agreement and the Investment
Advisory Agreement to which it is a party.
(xiii) Key Personnel. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ is the validly
appointed Chief Investment Officer of the Investment Adviser and the
lead portfolio manager of the Fund; ▇▇. ▇▇▇▇▇▇▇ has not given notice
nor made known an intention to give notice of termination of his
employment and the Investment Adviser knows of no reason why ▇▇.
▇▇▇▇▇▇▇ should be unable to serve as portfolio manager to the Fund.
(xiv) Control of Electronic Information. In the event that
the Fund or the Investment Adviser makes available any promotional
materials intended for use only by qualified broker dealers and
registered representatives thereof by means of a proprietary Internet
web site administered by such party or similar electronic means, the
Fund or the Investment Adviser will install and maintain
pre-qualification and password protection or similar procedures which
are reasonably designed to restrict access to such promotional
materials by persons other than qualified broker dealers and
representatives thereof.
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 Fund agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Fund, 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 Fund 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 Fund 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 overallotments which may be made in connection with the
offering and distribution of the Initial Securities upon written notice by the
Representatives to the Fund 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 earlier than the third day after the date on
which the option is being exercised nor 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 US LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such
other place as shall be agreed upon by the Representatives and the Fund, 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 Fund (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 Fund, on each Date of Delivery as specified in the
notice from the Representatives to the Fund.
Payment shall be made to the Fund by wire transfer of immediately
available funds to a bank account designated by the Fund, against delivery to
the Representatives for the respective accounts of the 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.
The Fund and the Investment Adviser, jointly and severally, covenant
with each Underwriter as follows:
(i) Compliance with Securities Regulations and Commission
Requests. The Fund, 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 Fund 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 Fund will make every reasonable
effort 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 Fund 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 object.
(iii) Delivery of Registration Statements. The Fund has
furnished or will deliver to the Representatives, without charge, a
signed copy of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or
incorporated by reference therein) and a signed copy 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 Fund has delivered to
each Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter reasonably requested, and the Fund
hereby consents to the use of such copies for purposes permitted by
the 1933 Act. The Fund 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
opinion of counsel for the Underwriters or for the Fund, 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 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 Fund 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 Fund 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 Fund 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 Fund 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 Fund 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) Rule 158. The Fund 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.
(viii) Use of Proceeds. The Fund 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 Fund will use its reasonable best efforts
to cause the Securities to be duly authorized for listing by the
NYSE, prior to the date the Securities are issued.
(x) Restriction on Sale of Securities. During a period of
180 days from the date of the Prospectus, the Fund will not, without
the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, (A) directly or
indirectly, offer, pledge, sell, contract to sell, sell any option,
rights or warrant 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 Fund, 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 Fund will comply with the
requirements of Subchapter M of the Code to qualify as a regulated
investment company under the Code.
(xiii) No Manipulation of Market for Securities. The Fund
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 Fund 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 Fund .
(xiv) Rule 462(b) Registration Statement. If the Fund elects
to rely upon Rule 462(b), the Fund 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 Fund 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 Fund 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 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 Fund'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
Fund shall pay the Underwriters $[ ] per common share as partial reimbursement
of expenses incurred in connection with the offering. The amount paid by the
Fund as this partial reimbursement to the Underwriters will not exceed [ ]% of
the total price to the public of the common stock sold in this offering. The
Fund's Investment Adviser has agreed to pay the Fund's offering and
organizational costs (other than sales load) that exceed $[ ] per share of
common stock.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section 9(a)
hereof, the Fund 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 Fund and the
Investment Adviser contained in Section 1 hereof or in certificates of any
officer of the Fund or the Investment Adviser delivered pursuant to the
provisions hereof, to the performance by the Fund 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, has become
effective or will have become effective by 5:30 p.m., New York City time on
the date hereof, 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 counsel to the Underwriters and counsel to
the Fund, threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with or waived
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 a certificate must have been filed in
accordance with Rule 497(j)) or, if the Fund 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 Fund and the Investment Adviser. At
Closing Time, the Representatives shall have received the favorable opinion,
dated as of Closing Time, of counsel for the Fund and the Investment Adviser,
and ▇▇▇▇▇ ▇▇▇▇▇, counsel for the Fund, in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters substantially to the effect set
forth in Exhibit A hereto and to such further effect as counsel to the
Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇▇▇▇ Chance US 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 Exhibit B 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 Fund 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 Fund, whether or not arising in the ordinary course
of business, and the Representatives shall have received a certificate of a
duly authorized officer of the Fund and of the chief financial or chief
accounting officer of the Fund 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, as applicable,
are true and correct with the same force and effect as though expressly made
at and as of Closing Time, (iii) each of the Fund and the Investment Adviser,
respectively, has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied pursuant to this Agreement at or prior
to Closing Time, (iv) with respect to the Investment Adviser only, there has
been no material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects, whether or not
arising in the ordinary course of business and (v) with respect to the Fund
only, 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 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 PricewaterhouseCoopers
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.
(i) They are independent certified public accountants with
respect to the Fund within the meaning of the 1933 Act and 1940 Act,
and the applicable rules and regulations thereunder adopted by the
Commission;
(ii) In their opinion, the financial statements of the Fund
audited by them and included in the Registration Statement comply as
to form in all material respects with the applicable accounting
requirements of the 1933 Act and 1940 Act and the related rules and
regulations adopted by the Commission;
(iii) on the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) consisting of:
(a) Reading the minutes of meetings of the Board of
Directors of the Fund as set forth in the minute books
through a specified date not more than three business days
prior to the date of delivery of such letter;
(b) Making inquiries of certain officials of the Fund who
have responsibility for financial and accounting matters
regarding changes in the capital stock, net assets or
long-term liabilities of the Fund as compared with the
amounts shown in the latest balance sheet included in the
Registration Statement or for the period from the date of
the latest income statement included in the Registration
Statement to a specified date not more than three business
days prior to the delivery of such letter.
(iv) The letter shall also state that the information set
forth under the captions "Summary of Fund Expenses," "Use of
Leverage" and "Description of Shares" which is expressed in dollars
(or percentages derived from such dollar amounts) and has been
obtained from accounting records which are subject to controls over
financial reporting or which has been derived directly from such
accounting records by analysis or computation, is in agreement with
such records or computations made therefrom, and such other
procedures as the Representatives may request and
PricewaterhouseCoopers LLP are willing to perform and report upon.
(f) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from PricewaterhouseCoopers 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 shall have confirmed that it has not
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(i) Execution of Additional Compensation Agreement. At Closing Time,
▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received the Additional Compensation Agreement, dated
as of the Closing Date, as executed by the Investment Adviser.
(j) 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 Fund contained herein and the statements in any certificates
furnished by the Fund hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Representatives shall have
received:
(i) Officers' Certificates. Certificates, dated such Date of
Delivery, of a duly authorized officer of the Fund and of the chief
financial or chief accounting officer of the Fund and of the
President or 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 Fund and the Investment
Adviser. The favorable opinion of counsel for the Fund and the
Investment Adviser, and ▇▇▇▇▇ ▇▇▇▇▇, counsel for the Fund, in form
and substance 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 US 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
PricewaterhouseCoopers 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.
(k) 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 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 Fund and the Investment Adviser in connection with
the organization and registration of the Fund 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. (l) 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 Fund 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 Fund and the Investment
Adviser, jointly and severally, agree to indemnify and hold harmless each of
you and each other Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act from and against any and all losses, claims, damages, liabilities
and expenses (including reasonable costs of investigation), joint or several,
arising out of or based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, the Prospectus,
any sales material (or any amendment or supplement to any of the foregoing),
or arising out of or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has been
made therein or omitted therefrom in reliance upon and in conformity with the
information relating to such Underwriter furnished in writing to the Fund by
or on behalf of any Underwriter through you expressly for use in connection
therewith; provided, however, that the indemnification contained in this
paragraph (a) with respect to any preliminary prospectus shall not inure to
the benefit of any Underwriter (or to the benefit of any person controlling
such Underwriter) on account of any such loss, claim, damage, liability or
expense arising from the sale of the Shares by such Underwriter to any person
if a copy of the Prospectus shall not have been delivered or sent to such
person within the time required by the 1933 Act and the 1933 Act Rules and
Regulations, and the untrue statement or alleged untrue statement or omission
or alleged omission of a material fact contained in such preliminary
prospectus was corrected in the Prospectus, provided that the Fund has
delivered the Prospectus to the several Underwriters in requisite quantity on
a timely basis to permit such delivery or sending. The foregoing indemnity
agreement shall be in addition to any liability that the Fund or the
Investment Adviser may otherwise have.
(b) Procedure. If any action, suit or proceeding, including any
investigation or proceeding by any governmental agency or body, shall be
commenced or threatened, against any Underwriter or any person controlling any
Underwriter in respect of which indemnity may be sought against the Fund or
the Investment Adviser, such Underwriter or such controlling person shall
promptly notify the Fund or the Investment Adviser, and the Fund or the
Investment Adviser shall assume the defense thereof, including the employment
of counsel and payment of all fees and expenses and the cost of any
investigation. Such Underwriter or any such controlling person shall have the
right to employ separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling person unless
(i) the Fund or the Investment Adviser has agreed in writing to pay such fees
and expenses, (ii) the Fund and the Investment Adviser have failed to assume
the defense and employ counsel, or (iii) the named parties to any such action,
suit or proceeding (including any impleaded parties) include both such
Underwriter or such controlling person and the Fund or the Investment Adviser
and such Underwriter or such controlling person shall have been advised by its
counsel that representation of such indemnified party and the Fund or the
Investment Adviser by the same counsel would be inappropriate under applicable
standards of professional conduct (whether or not such representation by the
same counsel has been proposed) due to actual or potential differing interests
between them (in which case the Fund and the Investment Adviser shall not have
the right to assume the defense of such action, suit or proceeding on behalf
of such Underwriter or such controlling person). It is understood, however,
that the Fund and the Investment Adviser shall, in connection with any one
such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable
fees and expenses of only one separate firm of attorneys (in addition to any
local counsel) at any time for all such Underwriters and controlling persons
not having actual or potential differing interests with you or among
themselves, which firm shall be designated in writing by ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, and that all such fees and expenses shall
be reimbursed as they are incurred. The Fund and the Investment Adviser shall
not be liable for any settlement of any such action, suit or proceeding
effected without its written consent, but if settled with such written
consent, or if there be a final judgment for the plaintiff in any such action,
suit or proceeding, the Fund and the Investment Adviser agree to indemnify and
hold harmless any Underwriter, to the extent provided in the preceding
paragraph, and any such controlling person from and against any loss, claim,
damage, liability or expense by reason of such settlement or judgment.
(c) Indemnification of Fund and Investment Adviser by Underwriters.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Fund and the Investment Adviser, their trustees, their directors,
any officers who sign the Registration Statement, and any person who controls
the Fund or the Investment Adviser within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, to the same extent as the foregoing
indemnity from the Fund and the Investment Adviser to each Underwriter, but
only with respect to information relating to such Underwriter furnished in
writing by or on behalf of such Underwriter through you expressly for use in
the Registration Statement, the Prospectus or any preliminary prospectus, or
any amendment or supplement thereto. If any action, suit or proceeding shall
be brought against the Fund or the Investment Adviser, any of their trustees,
their directors, any such officer, or any such controlling person based on the
Registration Statement, the Prospectus or any preliminary prospectus, or any
amendment or supplement thereto, and in respect of which indemnity may be
sought against any Underwriter pursuant to this paragraph (c), such
Underwriter shall have the rights and duties given to the Fund and the
Investment Adviser by paragraph (b) above (except that if the Fund or the
Investment Adviser shall have assumed the defense thereof such Underwriter
shall not be required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at such Underwriter's expense), and the Fund and the Investment
Adviser, their trustees, their directors, any such officer, and any such
controlling person shall have the rights and duties given to the Underwriters
by paragraph (b) above. The foregoing indemnity agreement shall be in addition
to any liability that the Underwriters may otherwise have.
(d) Settlement and Consent.
(i) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending action, suit or proceeding with respect to which such
indemnified party is a party unless either (A) such settlement does
not include a statement as to or an admission of fault, culpability
or a failure to act by or on behalf of the indemnifying party or such
indemnified party and does not settle such action suit or proceeding
with respect to such indemnified party or (B) such settlement
includes an unconditional release of the indemnified party and does
not include a statement as to or an admission of fault, culpability
or a failure to act by or on behalf of the indemnified party.
(ii) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened action, suit or proceeding with respect to
which an indemnified party could have been but is not a party and
with respect to which indemnity could have been sought hereunder
unless such settlement does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf
of the indemnifying party or such indemnified party.
(e) Survival. Any losses, claims, damages, liabilities or expenses
for which an indemnified party is entitled to indemnification or contribution
under this Section 6 or Section 7 shall be paid by the indemnifying party to
the indemnified party as such losses, claims, damages, liabilities or expenses
are incurred. The indemnity and contribution agreements contained in this
Section 6 and Section 7 and the representations and warranties of the Fund and
the Investment Adviser set forth in this Agreement shall remain operative and
in full force and effect, regardless of (i) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter, the Fund,
the Investment Adviser, their trustees, their directors or officers, or any
person controlling the Fund or the Investment Adviser, (ii) acceptance of any
Shares and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to any Underwriter or any person controlling any
Underwriter, or to the Fund, the Investment Adviser, their trustees, their
directors or officers, or any person controlling the Fund or the Investment
Adviser, shall be entitled to the benefits of the indemnity, contribution, and
reimbursement agreements contained in this Section 6 or Section 7.
(f) Notwithstanding any other provisions in this Section 6 or Section
7, no party shall be entitled to indemnification or contribution under this
Agreement against any loss, claim, liability, expense or damage arising by
reason of such person's willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties in the performance of its duties hereunder.
SECTION 7. Contribution.
(a) If the indemnification provided for in Section 6 is unavailable
to an indemnified party under paragraphs (a) or (c) thereof in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Fund and the Investment Adviser on the one hand (treated jointly for this
purpose as one person) and the Underwriters on the other hand from the
offering of the Shares, or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Fund and the Investment Adviser on the one hand
(treated jointly for this purpose as one person) and the Underwriters on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the Fund
and the Investment Adviser on the one hand (treated jointly for this purpose
as one person) and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Fund bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault of the Fund and
the Investment Adviser on the one hand (treated jointly for this purpose as
one person) and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Fund and the Investment
Adviser on the one hand (treated jointly for this purpose as one person) or by
the Underwriters on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(b) The Fund, 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 a pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (a) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
paragraph (a) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating any claim or defending any
such action, suit or proceeding. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price of the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇
▇▇▇) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7 are several in proportion to the respective numbers
of Shares set forth opposite their names in Schedule A hereto and not joint.
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 contribution as such Underwriter,
and each trustee and shareholder of the Fund and each director of the
Investment Adviser, respectively, each officer of the Fund who signed the
Registration Statement, and each person, if any, who controls the Fund 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
Fund and the Investment Adviser, respectively.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and covenants contained in this
Agreement or in certificates of officers of the Fund 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 Fund or the
Investment Adviser, and shall survive delivery of the Securities to the
Underwriters.
SECTION 9. Termination of Agreement.
(b) Termination; General. The Representatives may terminate this
Agreement, by notice to the Fund, 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 (exclusive
of any supplement thereto), any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Fund 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 Fund 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.
(c) 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 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 Fund 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 Fund to sell the relevant
Option Securities, as the case may be, either the Representatives or the Fund
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. Tax Disclosure.
Notwithstanding any other provision of this Agreement, from the
commencement of discussions with respect to the transactions contemplated
hereby, the Fund and the Investment Adviser (and each employee, representative
or other agent of the Fund) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure (as such terms are
used in Sections 6011, 6111 and 6112 of the U.S. Code and the Treasury
Regulations promulgated thereunder) of the transactions contemplated by this
Agreement and all materials of any kind (including opinions or other tax
analyses) that are provided relating to such tax treatment and tax structure.
SECTION 12. 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, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of Equity Capital Markets; and
notices to the Fund or the Investment Adviser shall be directed, as
appropriate, to the office of Gabelli Asset Management, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇.
SECTION 13. Parties.
This Agreement shall each inure to the benefit of and be binding upon
the Underwriters, the Fund, the Investment Adviser and its 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 Fund, the Investment Adviser and their respective successors
and the controlling persons and officers, trustees 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 Fund, the Investment Adviser and their respective partners
and successors, and said controlling persons and officers, trustees,
shareholders 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 14. 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 15. Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
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 Fund and Investment Adviser in accordance with its
terms.
Very truly yours,
The Gabelli Global Utility & Income Trust
By:
--------------------------------------
Name:
Title:
Gabelli Funds, LLC
By:
--------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
GABELLI & COMPANY, INC.
[other managing underwriters]
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
---------------------------------------
Authorized Signatory
For themselves and as Representatives of
the other Underwriters named in Schedule A
hereto.
SCHEDULE A
Number of
Name of Underwriter Initial Securities
------------------- ------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated.....................................
Gabelli & Company, Inc...................................
Total............................................
SCHEDULE B
The Gabelli Global Utility & Income Trust
Common Shares of Beneficial Interest
($0.001 Par Value)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $[ ].
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $[ ], being an amount equal to the initial
public offering price set forth above less $[ ] per share; provided that the
purchase price per share for any Option Securities purchased upon the exercise
of the overallotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the Fund
and payable on the Initial Securities but not payable on the Option
Securities.
Exhibit A
FORM OF OPINION OF FUND'S
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b)
Ladies and Gentlemen:
We have acted as counsel to The Gabelli Global Utility & Income
Trust, a Delaware statutory trust (the "Fund"), in connection with the
issuance and sale by the Fund of [ ] common shares of beneficial interest, par
value $.001 (the "Shares"), pursuant to the Purchase Agreement, dated as of
April [ ], 2004 (the "Purchase Agreement"), between the Fund and Gabelli
Funds, LLC (the "Adviser") and you.
This opinion is being furnished pursuant to Sections 5(b) of the
Purchase Agreement. Capitalized terms used and not otherwise defined herein
shall have the respective meanings set forth in the Purchase Agreement.
In connection with this opinion, we have examined [__] and [__] such
other documents as we have deemed necessary or appropriate as a basis for the
opinions set forth herein. We have also examined originals or copies,
certified or otherwise identified to our satisfaction, of such records of the
Fund and such agreements, certificates of public officials, certificates of
officers or other representatives of the Fund and others, and such other
documents, certificates and records as we have deemed necessary or appropriate
as a basis for the opinion set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of executed documents, we have assumed that the parties thereto
had the corporate power to enter into and perform all obligations thereunder
and have also assumed the due authorization by all requisite action, corporate
or other, and, except to the extent set forth in numbered paragraph 6 below,
the validity and binding effect thereof. In rendering the opinion set forth in
numbered paragraph 4 below, we have also assumed that the execution and
delivery by the Fund of the Purchase Agreement and the performance by the Fund
of its obligations thereunder do not and will not violate or constitute a
default under (i) any agreement or instrument to which the Fund is subject
other than Material Agreements, (ii) any law, rule, or regulation to which the
Fund is subject (except that we do not make the assumption set forth in this
clause (ii) with respect to Applicable Laws (as defined below)), (iii) any
judicial or regulatory decree of any Governmental Authority other than as
identified on a certificate or of which we have actual knowledge or (iv) any
consent, approval, license, authorization or validation of, or filing,
recording or registration with any Governmental Authority other than as
identified on an Officer's Certificate or of which we have actual knowledge.
As to any facts material to the opinions expressed herein that we did not
independently establish or verify, we have relied upon oral or written
statements and representations of officers and other representatives of the
Fund and others.
With respect to any agreement or instrument examined by us which by
its terms purports to be governed by the laws of any jurisdiction other than
the Federal laws of the United States, the Delaware Statutory Trust Act or the
laws of the State of New York, our opinions are based solely upon our
understanding of the plain language of such agreement or instrument, and we do
not express any opinion with respect to the interpretation, validity, binding
nature or enforceability of any agreement or instrument which by its terms
purports to be governed by the laws of any jurisdiction other than the United
States, the State of Delaware or the State of New York.
As used herein, (i) the term "Applicable Laws" means the New York
Business Corporation Law, the Delaware Statutory Trust Act and those laws,
rules and regulations of the State of Delaware, the State of New York and the
United States of America that, in our experience, are normally applicable to
entities such as the Fund or transactions of the type contemplated by the
Purchase Agreement, but without our having made any special investigation
concerning any other laws, rules or regulations; provided that the term
"Applicable Laws" does not include (a) the rules and regulations of the
National Association of Securities Dealers, Inc., (b) any federal or state
securities or blue sky laws, (c) any antifraud laws or (d) any law, rule or
regulation that may have become applicable to the Fund as a result of the
Underwriters' involvement with the transactions contemplated by the Purchase
Agreement or because of any facts specifically pertaining to the Underwriters;
(ii) the term "Material Agreement" means any bond, debenture, note or other
evidence of indebtedness or any contract or agreement included as an exhibit
to the Registration Statement; (iii) the term "Governmental Authority" means
any Delaware, New York or federal executive, legislative, judicial,
administrative or regulatory body under Applicable Laws and the New York Stock
Exchange; and (iv) the term "Governmental Approval" means any consent,
approval, license, authorization, order or validation of, or filing, recording
or registration with, any Governmental Authority pursuant to Applicable Laws.
The opinions set forth herein as to our knowledge are based on our
discussions with the officers of the Fund responsible for the matters
discussed therein and our review of documents furnished to us by the Fund, and
we have not made any search of the public docket records of any court,
governmental agency or body or administrative agency.
Members of our firm are admitted to the Bar in the State of New York
and the State of Delaware, and we do not express any opinion as to the laws of
any other jurisdiction other than the laws of the United States of America to
the extent referred to specifically herein.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Fund is a statutory trust duly formed, validly existing and in
good standing under the laws of the State of Delaware with full trust power to
own, lease and operate its properties and to conduct its business as described
in the Registration Statement and the Prospectus (and any amendment or
supplement to either of them in effect as of the date hereof). The opinion set
forth in this paragraph 1 with respect to the Fund's formation, existence and
standing is based solely upon our review of a certificate of the Secretary of
State of Delaware and a telephonic confirmation from the Secretary of State of
the State of Delaware.
2. The Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with the
terms of the Purchase Agreement, will be validly issued, fully paid and
nonassessable. The issuance of the Shares will not be subject to preemptive or
other similar rights entitling any person to purchase or acquire any of the
Shares upon the issuance thereof by the Fund which arise by operation of the
laws of the State of Delaware or under the Agreement and Declaration of Trust
or the By-Laws.
3. The authorized and capital shares of the Fund is as set forth
under the caption "Description of the Shares" in the Prospectus and the Shares
conform in all material respects as to legal matters to the description
thereof contained in the Prospectus under the caption "Description of the
Shares." The information in the Registration Statement under Item 29
(Indemnification), to the extent it constitutes a summary of the Fund's
Declaration or By-Laws, has been reviewed by us and is correct in all material
respects.
4. The Fund has the requisite trust power and authority to enter into
and execute and deliver the Purchase Agreement and to issue, sell and deliver
the Shares to the Underwriters as provided for therein.
5. Each Fund Agreement and the Purchase Agreement has been duly
executed and delivered by the Fund and is a valid, legal and binding agreement
of the Fund, enforceable against the Fund in accordance with its terms, except
to the extent that (i) enforcement thereof may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally or (b) general principles of
equity (regardless of whether enforceability is considered in a proceeding at
law or in equity) and (ii) enforcement of rights to indemnity and contribution
under the Fund Agreements and the Purchase Agreement may be limited by Federal
or state securities laws or principles of public policy.
6. Neither the offer, sale or delivery of the Shares, the execution,
delivery or performance of the Purchase Agreement and the Fund Agreements by
the Fund, compliance by the Fund with the provisions of such Fund Agreements
or the Purchase Agreement nor consummation by the Fund of the transactions
contemplated by the Purchase Agreement and the Fund Agreements conflicts or
will conflict with or constitutes or will constitute a breach of, or default
under the Agreement and Declaration of Trust, the By-Laws or any Material
Agreement, or give any person party to any Material Agreement (or any person
acting on such person's behalf) the right to require the repurchase,
redemption or repayment by the Fund of all or a portion of the indebtedness
represented by any Material Agreement, or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Fund under any Material Agreement, nor will any such action result in any
violation of (i) any Applicable Law or (ii) any judgment, order or decree
identified in an Officer's Certificate (a) of a Governmental Authority or (b)
pursuant to the 1933 Act, the 1934 Act and the Investment Company Act.
7. The Fund has full trust power and all necessary governmental
authorizations, approvals, orders, licenses, certificates, franchises and
permits of and from all governmental regulatory officials and bodies required
under Applicable Law (except where the failure to have any such
authorizations, approvals, orders, licenses, certificates, franchises or
permits, individually or in the aggregate, would not have a material adverse
effect on the business, properties, operations or financial condition of the
Fund), to own its properties and to conduct business as described in the
Prospectus.
8. No consent, approval, authorization or other order of, or
registration or filing with, any securities commission, court, regulatory
body, administrative agency or other governmental body, agency, or official of
the State of Delaware is required on the part of the Fund for the valid
issuance and sale of the Shares to the Underwriters as contemplated by the
Purchase Agreement, the execution and delivery by the Fund of the Purchase
Agreement and the performance by the Fund of its obligations thereunder or the
consummation of the transactions contemplated thereby by the Fund, except
those as may be required under the securities or blue sky laws of the State of
Delaware (as to which we express no opinion); it being understood that we do
not express any opinion as to any such consent, approval, authorization or
other order of, or registration or filing, which may be required as a result
of the involvement of any other parties to the Purchase Agreement.
9. No (i) Governmental Approval or (ii) consent, approval, license,
authorization, order or validation of, or filing, recording or registration
with, any Governmental Authority pursuant to the 1933 Act, the 1934 Act and
the Investment Company Act ("Other Approvals") is required for the valid
issuance and sale of the Shares to the Underwriters or the execution, delivery
and performance by the Fund of the Purchase Agreement and the Fund Agreements
or consummation of the transactions contemplated thereby except such
Governmental Approvals and Other Approvals as have been obtained.
10. The 1940 Act Notification, the Registration Statement, including
any Rule 462(b) Registration Statement, the Rule 430A information, as
applicable, the Prospectus, the Fund's Registration Statement on Form 8-A
under the 1934 Act and any supplement or amendment thereto in effect as of the
date hereof (except for the financial statements and the notes thereto and the
schedules and other financial data included therein, as to which we express no
opinion) comply as to form in all material respects with the requirements of
the 1933 Act, the Investment Company Act and the 1934 Act and the rules and
regulations under the 1933 Act, the Investment Company Act and the ▇▇▇▇ ▇▇▇.
11. To our actual knowledge, after reasonable inquiry, other than as
described or contemplated in the Registration Statement or Prospectus (or any
supplement thereto), there are (i) no legal or governmental proceedings in the
State of Delaware, the State of New York or, to our actual knowledge, any
other state, pending or threatened against the Fund, or to which the Fund or
any of its properties is subject, which are required to be described in the
Registration Statement or Prospectus (or any amendment or supplement to either
of them in effect as of the date hereof) that are not described as required
and (ii) no agreements, contracts, indentures, leases or other instruments
that are required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement to either of them in effect as of
the date hereof) or to be filed as an exhibit to the Registration Statement
that are not described or filed as required, as the case may be.
12. Each of the Fund Agreements and the Fund's and the Adviser's
obligations under each of the Purchase Agreement and the Fund Agreements
comply as to form in all material respects with all applicable provisions of
the 1933 Act, the Investment Company Act, the Investment Advisers Act of 1940
and the rules and regulations under each of the 1933 Act, the Investment
Company Act and the Investment Advisers Act of 1940.
13. The Fund is duly registered with the Commission under the
Investment Company Act as a closed-end, non-diversified management investment
company; and the provisions of the Fund's Agreement and Declaration of Trust
and the By-Laws, as supplemented, amended and restated, the investment
policies and restrictions described in the Registration Statement and the
Prospectus under the captions "The Fund," "Investment Objective and Policies,"
"Risk Factors and Special Considerations," and "Investment Restrictions" (in
the statement of additional information) comply in all material respects with
the requirements of the Investment Company Act, and all action has been taken
by the Fund as is required of the Fund by the 1933 Act and the Investment
Company Act and the rules and regulations under the 1933 Act and the
Investment Company Act in connection with the issuance and sale of the Shares
to make the public offering and consummate the sale of the Shares as
contemplated by the Purchase Agreement.
14. To our actual knowledge after reasonable inquiry, except as
described in the Prospectus, there is no holder of any security of the Fund or
any other person who has the right, contractual or otherwise pursuant to any
Material Agreement, to cause the Fund to sell or otherwise issue to them, or
to permit them to underwrite the sale of, the Shares or the right to have any
securities of the Fund included in the Registration Statement or the right, as
a result of the filing of the Registration Statement, to require registration
under the 1933 Act of any securities of the Fund.
15. The forms of certificates for the Shares do not conflict with any
requirements of Delaware Statutory Trust law.
We have been orally advised that the Registration Statement was
declared effective at 5 p.m. on [ ], 2004 and, to our best knowledge
after reasonable inquiry, no stop order suspending the effectiveness of the
Registration Statement or order pursuant to Section 8(e) of the Investment
Company Act has been issued and no proceedings for that purpose are pending
before or contemplated by the Commission; and any required filing of the
Prospectus pursuant to Rule 497 has been made in accordance with Rule 497.
With respect to the opinions set forth in numbered paragraph 2 above,
we point out that our opinion as to preemptive rights or other rights to
subscribe to or purchase securities is only as to the rights that would be
created as a matter of Delaware law or under the Agreement and Declaration of
Trust or the By-Laws. We do not express any opinion as to preemptive or other
similar rights of shareholders of the Fund that may exist under the terms of
any contractual arrangement to which the Fund may be a party.
This opinion is furnished to you solely for your benefit, the benefit
of the other Underwriters and, solely with respect to matters relating to the
Delaware Statutory Trust Act, ▇▇▇▇▇▇▇▇ Chance US LLP, counsel to the
Underwriters, in connection with the closing under the Purchase Agreement
occurring today and is not to be used, circulated, quoted or otherwise
referred to for any other purpose without our prior express written
permission, except to the extent that such use, circulation, quotation, or
reference is necessary so that the issuance of the Shares is not treated as a
"confidential transaction" within the meaning of Treasury Regulations section
1.6011-4(b)(3).
Very truly yours,
FORM OF OPINION OF ADVISER'S
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b)
Ladies and Gentlemen:
We have acted as special counsel to Gabelli Funds, LLC, a New York
limited liability company (the "Adviser"), in connection with the issuance and
sale by The Gabelli Global Utility & Income Trust (the "Fund"), a Delaware
statutory trust, of [ ] common shares of beneficial interest, par value $.001
per share (the "Shares"), pursuant to the Purchase Agreement, dated as of
April [ ], 2004 (the "Purchase Agreement"), between the Fund, the Adviser and
you.
This opinion is being furnished pursuant to Section 5(b) of the
Purchase Agreement. Capitalized terms used and not otherwise defined herein
shall have the respective meanings set forth in the Purchase Agreement.
In connection with this opinion, we have examined [__] and [__] such
other documents as we have deemed necessary or appropriate as a basis for the
opinions set forth herein. We have also examined originals or copies,
certified or otherwise identified to our satisfaction, of such records of the
Fund and such agreements, certificates of public officials, certificates of
officers or other representatives of the Fund and others, and such other
documents, certificates and records as we have deemed necessary or appropriate
as a basis for the opinion set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of executed documents, we have assumed that the parties thereto
other than the Adviser had the corporate power to enter into and perform all
obligations thereunder and have also assumed the due authorization by all
requisite action, corporate or other, and execution and delivery by such
parties other than the Adviser of such documents and, except to the extent set
forth in numbered paragraph 3 below, the validity and binding effect thereof.
In rendering the opinion set forth in numbered paragraph 3 below, we have also
assumed that the execution and delivery by the Adviser of the Purchase
Agreement and the performance by the Adviser of its obligations thereunder do
not and will not violate or constitute default under (i) any agreement or
instrument to which the Adviser is subject other than Material Agreements (as
defined below); (ii) any law, rule, or regulation to which the Adviser is
subject (except that we do not make the assumption set forth in this clause
(ii) with respect to Applicable Laws (as defined below)); (iii) any judicial
or regulatory decree of any Governmental Authority (as defined below) other
than as identified on an Officer's Certificate or of which we have actual
knowledge; or (iv) any consent, approval, license, authorization or validation
of, or filing, recording or registration with any Governmental Authority other
than as identified on an Officer's Certificate or of which we have actual
knowledge. As to any facts material to the opinions expressed herein that we
did not independently establish or verify, we have relied upon oral or written
statements and representations of officers and other representatives of the
Fund and others.
With respect to any agreement or instrument examined by us which by
its terms purports to be governed by the laws of any jurisdiction other than
the Federal laws of the United States or the laws of the State of New York,
our opinions are based solely upon our understanding of the plain language of
such agreement or instrument, and we do not express any opinion with respect
to the interpretation, validity, binding nature or enforceability of any
agreement or instrument which by its terms purports to be governed by the laws
of any jurisdiction other than the United States or the State of New York.
As used herein, (i) the term "Applicable Laws" means the New York
Business Corporation Law and those laws, rules and regulations of the State of
New York and the United States of America that, in our experience, are
normally applicable to entities such as the Adviser or transactions of the
type contemplated by the Purchase Agreement, but without our having made any
special investigation concerning any other laws, rules or regulations;
provided that the term "Applicable Laws" does not include (a) the rules and
regulations of the National Association of Securities Dealers, Inc., (b) any
federal or state securities or blue sky laws, (c) any antifraud laws or (d)
any law, rule or regulation that may have become applicable to the Adviser as
a result of the Underwriters' involvement with the transactions contemplated
by the Purchase Agreement or because of any facts specifically pertaining to
the Underwriters; (ii) the term "Material Agreement" means any contract or
agreement identified in an Officer's Certificate as material or as one which
could have an effect on the type of transactions contemplated by the Purchase
Agreement; (iii) the term "Governmental Authority" means any New York or
federal executive, legislative, judicial, administrative or regulatory body
under Applicable Laws and the New York Stock Exchange; and (iv) the term
"Governmental Approval" means any consent, approval, license, authorization,
order or validation of, or filing, recording or registration with, any
Governmental Authority pursuant to Applicable Laws.
The opinions set forth herein as to our knowledge are based on our
discussions with the officers of the Adviser responsible for the matters
discussed therein and our review of documents furnished to us by the Adviser,
and we have not made any search of the public docket records of any court,
governmental agency or body or administrative agency.
Members of our firm are admitted to the Bar in the State of New York,
and we do not express any opinion as to the laws of any other jurisdiction
other than the laws of the United States of America to the extent referred to
specifically herein.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Adviser is a limited liability company duly organized and
validly existing in good standing under the laws of the State of New York with
full limited liability company power and authority to own, lease and operate
its properties and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them in effect as of the date hereof). The opinion set forth in this paragraph
1 with respect to the Adviser subsisting and in good standing as a corporation
under the laws of the State of New York is based solely upon our review of a
certificate of the Secretary of State of the State of New York and a
telephonic confirmation from the Secretary of State of the State of New York.
2. The Adviser is duly registered with the Commission as an
investment adviser under the Investment Advisers Act of 1940, as amended (the
"Advisers Act") and is not prohibited by the Advisers Act, the Investment
Company Act or the rules and regulations under each of the Advisers Act and
the Investment Company Act from acting under the Investment Advisory Agreement
for the Fund as contemplated by the Prospectus (or any amendment or supplement
thereto in effect as of the date hereof).
3. The Adviser has limited liability company power and authority to
enter into the Purchase Agreement and the Investment Advisory Agreement, and
the Purchase Agreement and the Investment Advisory Agreement have been duly
authorized, executed and delivered by the Adviser and each is a valid, legal
and binding agreement of the Adviser, enforceable against the Adviser in
accordance with its terms except to the extent that (i) enforcement thereof
may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally, (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity) and (ii)
enforcement of rights to indemnity and contribution under the Fund Agreements
and the Purchase Agreement may be limited by Federal or state securities laws
or principles of public policy.
4. Neither the execution, delivery or performance of the Purchase
Agreement or the Investment Advisory Agreement by the Adviser, compliance by
the Adviser with the provisions of the Purchase Agreement or the Investment
Advisory Agreement nor consummation by the Adviser of the transactions
contemplated by the Purchase Agreement and the Investment Advisory Agreement
conflicts or will conflict with, or constitutes or will constitute a breach or
default under the Certificate of Formation or Operating Agreement, or other
organizational documents, of the Adviser or any Material Agreement to which
the Adviser is a party, or will result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Adviser under
any Material Agreement, nor will any such action result in any violation of
any Applicable Law.
5. No (i) Governmental Approval or (ii) consent, approval, license,
authorization, order or validation of, or filing, recording or registration
with, any Governmental Authority pursuant to the 1933 Act, the Securities
Exchange Act of 1934, the Investment Company Act and the Advisers Act ("Other
Approvals") is required on the part of the Adviser for the execution, delivery
and performance by it of the Purchase Agreement and the Investment Advisory
Agreement to which it is a party or the consummation by it of the transactions
contemplated by such agreements except such Governmental Approvals and Other
Approvals as have been obtained.
6. To our actual knowledge after reasonable inquiry, there are no
legal or governmental proceedings pending or threatened against the Adviser or
to which the Adviser or any of its properties is subject, which are required
to be described in the Registration Statement or the Prospectus (or any
amendment or supplement to either of them in effect as of the date hereof) but
are not described as required or which could be reasonably expected to
adversely affect the ability of the Adviser to perform its obligations under
the Purchase Agreement or the Investment Advisory Agreement.
7. The obligations of the Adviser under the Purchase Agreement and
the Investment Advisory Agreement comply in all material respects with all
applicable provisions of the Investment Company Act, the Advisers Act and the
rules and regulations under each of the Investment Company Act and the
Advisers Act.
8. The Adviser has full limited liability company power and authority
and all necessary governmental authorizations, approvals, orders, licenses,
certificates, franchises and permits of and from all governmental regulatory
officials and bodies required under Applicable Law (except where the failure
so to have any such authorizations, approvals, orders, licenses, certificates,
franchises or permits, individually or in the aggregate, would not have a
material adverse effect on the business, properties, operations or financial
condition of the Adviser and its subsidiaries), to own its properties and to
conduct business including specifically its business of acting as investment
adviser to registered investment companies and as otherwise described in the
Prospectus, and to perform its obligations under the Investment Advisory
Agreement.
We have been advised by the Adviser that the Adviser is not
registered or qualified to conduct its business as a foreign corporation in
any jurisdiction and that it believes there is no such jurisdiction where the
nature of its properties or the conduct of its business requires such
registration or qualification and where the failure to register or qualify
would have a material adverse effect on the operations of the Adviser or on
the ability of the Adviser to perform its obligations under the Purchase
Agreement or the Investment Advisory Agreement.
This opinion is furnished to you solely for your benefit and the
benefit of the other Underwriters in connection with the closing under the
Purchase Agreement occurring today and is not to be used, circulated, quoted
or otherwise referred to for any other purpose without our prior express
written permission, except to the extent that such use, circulation,
quotation, or reference is necessary so that the issuance of the Shares is not
treated as a "confidential transaction" within the meaning of Treasury
Regulations section 1.6011-4(b)(3).
Very truly yours,
FORM OF OPINION OF ▇▇▇▇▇ ▇▇▇▇▇
TO BE DELIVERED PURSUANT TO
SECTION 5(b) WITH RESPECT TO THE FUND
Ladies and Gentlemen:
I have acted as counsel to The Gabelli Global Utility & Income Trust,
a Delaware statutory trust (the "Fund"), in connection with the issuance and
sale by the Fund of [ ] (the "Shares"), pursuant to the Purchase Agreement,
dated as of April [ ], 2004 (the "Underwriting Agreement"), between the Fund
and Gabelli Funds, LLC (the "Adviser") and you.
This opinion is being furnished pursuant to Section 5(b) of the
Underwriting Agreement. Capitalized terms used and not otherwise defined
herein shall have the respective meanings set forth in the Underwriting
Agreement.
In connection with this opinion, I have examined [__] (such Agreement
and Declaration of Trust, the "Governing Documents") and By-Laws of the Fund,
each as amended through the date hereof, [__] (the "Fund Agreements") and [__]
such other documents as I have deemed necessary or appropriate as a basis for
the opinions set forth herein. I have also examined originals or copies,
certified or otherwise identified to my satisfaction, of such records of the
Fund and such agreements, certificates of public officials, certificates of
officers or other representatives of the Fund and others, and such other
documents, certificates and records as I have deemed necessary or appropriate
as a basis for the opinion set forth herein.
In my examination, I have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making my
examination of executed documents, I have assumed that the parties thereto had
the corporate power to enter into and perform all obligations thereunder and
have also assumed the due authorization by all requisite action, corporate or
other, and the validity and binding effect thereof. I have also assumed that
the execution and delivery by the Fund of the Underwriting Agreement and the
performance by the Fund of its obligations thereunder do not and will not
violate or constitute a default under any law, rule, or regulation to which
the Fund is subject (except that I do not make the assumption set forth in
this clause with respect to Applicable Laws (as defined below)). As to any
facts material to the opinions expressed herein that I did not independently
establish or verify. I have relied upon oral or written statements and
representations of officers and other representatives of the Fund and others.
With respect to any agreement or instrument examined by me which by
its terms purports to be governed by the laws of any jurisdiction other than
the Federal laws of the United States or the laws of the State of New York, my
opinions are based solely upon my understanding of the plain language of such
agreement or instrument, and I do not express any opinion with respect to the
interpretation, validity, binding nature or enforceability of any agreement or
instrument which by its terms purports to be governed by the laws of any
jurisdiction other than the United States or the State of New York.
As used herein, (a) the term "Applicable Laws" means the New York
Business Corporation Law and those laws, rules and regulations of the State of
New York and the United States of America that, in my experience, are normally
applicable to entities such as the Fund and transactions of the type
contemplated by the Underwriting Agreement, but without my having made any
special investigation concerning any other laws, rules or regulations;
provided that the term "Applicable Laws" does not include (1) the rules and
regulations of the National Association of Securities Dealers, Inc., (2) any
federal or state securities or blue sky laws other than the 1933 Act, the 1934
Act, the Investment Company Act and the applicable rules and regulations
thereunder to the extent not excluded by item 3 below, (3) any antifraud laws
under the 1933 Act or the 1934 Act as they are applicable to the Prospectus
and the Registration Statement or (4) any law, rule or regulation that may
have become applicable to the Fund as a result of the Underwriters'
involvement with the transactions contemplated by the Underwriting Agreement
or because of any facts specifically pertaining to the Underwriters; and (b)
the term "Material Agreement" means any contract included or required to be
included as an exhibit to the Registration Statement; and (c) the term
"Governmental Authority" means any New York or federal executive, legislative,
judicial, administrative or regulatory body under Applicable Laws and the New
York Stock Exchange.
The opinions set forth herein as to my knowledge are based on my own
knowledge and my discussions with the officers of the Fund and the Adviser
responsible for the matters discussed therein and my review of documents of
the Fund and the Adviser, and I have not made any search of the public docket
records of any court, governmental agency or body or administrative agency.
I am admitted to the Bar in the State of New York, and I do not
express any opinion as to the laws of any other jurisdiction other than the
laws of the United States of America to the extent referred to specifically
herein.
Based upon the subject to the foregoing, I am of the opinion that:
1. The Fund is not in violation of its Governing Documents, or
By-Laws and to my actual knowledge after reasonable inquiry, is not in default
in the performance of any material obligation, agreement or condition
contained in any bond, debenture, note or other evidence of indebtedness,
except as may be disclosed in the Prospectus.
2. The Fund is not in violation of any Material Agreement.
3. To my actual knowledge after reasonable inquiry, the Fund is not
in violation of any Applicable Law or any order, judgment or decree of any
Governmental Authority.
This opinion is furnished to you solely for your benefit and the
benefit of the other Underwriters in connection with the closing under the
Underwriting Agreement occurring today and is not to be used, circulated,
quoted or otherwise referred to for any other purpose without my prior express
written permission, except to the extent that such use, circulation,
quotation, or reference is necessary so that the issuance of the Shares is not
treated as a "confidential transaction" within the meaning of Treasury
Regulations section 1.6011-4(b)(3).
Very truly yours,
▇▇▇▇▇ ▇. ▇▇▇▇▇
FORM OF RULE 10B-5 NEGATIVE ASSURANCE LETTER OF FUND'S
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b) WITH RESPECT TO THE FUND OPINION
Ladies and Gentlemen:
We have acted as counsel to The Gabelli Global Utility & Income
Trust, a Delaware statutory trust (the "Fund"), in connection with the
issuance and sale by the Fund [ ] (the "Shares"), pursuant to the Purchase
Agreement, dated as of April [ ], 2004 (the "Purchase Agreement"), between the
Fund and Gabelli Funds, LLC (the "Adviser") and you.
This letter is being furnished pursuant to Section 5(b) of the
Purchase Agreement. Capitalized terms used and not otherwise defined herein
shall have the respective meanings set forth in our opinion to you dated the
date hereof as counsel to the Fund with respect to the [__] (the "Opinion").
In connection with this letter, we have examined [__] and [__] such
other documents as we have deemed necessary or appropriate. We have also
examined originals or copies, certified or otherwise identified to our
satisfaction, of such records of the Fund and such agreements, certificates of
public officials, certificates of officers or other representatives of the
Fund and others, and such other documents, certificates and records as we have
deemed necessary or appropriate.
In addition, we have participated in conferences with officers and
employees of the Fund, representatives of the independent accountants for the
Fund, and you and your counsel at which the contents of the Registration
Statement and the Prospectus and related matters were discussed and, although
we are not passing upon, and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus except to the limited extent
otherwise covered by paragraphs 3, 11 and 13 of our Opinion, and have made no
independent check or verification thereof, on the basis of the foregoing, no
facts have come to our attention that have led us to believe that the
Registration Statement, or any amendment or supplement thereto, at the time it
became effective, contained an untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, or any amendment
or supplement thereto, as of its issue date and as of the date hereof,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, except that we express no belief with respect to
the financial statements, schedules and other financial information included
therein or excluded therefrom or the exhibits to the Registration Statement.
This letter is furnished to you solely for your benefit, the benefit
of the other Underwriters in connection with the closing under the
Underwriting Agreement occurring today and is not to be used, circulated,
quoted or otherwise referred to for any other purpose without our prior
express written permission, except to the extent that such use, circulation,
quotation, or reference is necessary so that the issuance of the Shares is not
treated as a "confidential transaction" within the meaning of Treasury
Regulations section 1.6011-4(b)(3).
Very truly yours,
FORM OF RULE 10B-5 NEGATIVE ASSURANCE LETTER OF ADVISER'S
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b) WITH RESPECT TO THE ADVISER OPINION
Ladies and Gentlemen:
We have acted as special counsel to Gabelli Funds, LLC, a New York
limited liability company (the "Adviser"), in connection with the issuance and
sale by The Gabelli Global Utility & Income Trust (the "Fund"), a Delaware
statutory trust, of [ ] common shares of beneficial interest, par value $.001
per share (the "Shares"), pursuant to the Purchase Agreement, dated as of
April [ ], 2004 (the "Purchase Agreement"), between the Fund, the Adviser and
you.
This letter is being furnished pursuant to Section 5(b) of the
Purchase Agreement. Capitalized terms used and not otherwise defined herein
shall have the respective meanings set forth in our opinion to you dated the
date hereof as special counsel to the Adviser with respect to the Shares (the
"Opinion").
In connection with this letter, we have reviewed [__] and [__] such
other documents as we have deemed necessary or appropriate as a basis for the
opinions set forth herein. We have also examined originals or copies,
certified or otherwise identified to our satisfaction, of such records of the
Fund and such agreements, certificates of public officials, certificates of
officers or other representatives of the Fund and others, and such other
documents, certificates and records as we have deemed necessary or
appropriate.
In addition, we have participated in conferences with officers and
employees of the Adviser, with representatives of the independent accountants
for the Adviser and with you and your counsel at which the contents of the
Registration Statement and the Prospectus and related matters were discussed
and, although we are not passing upon, and do not assume any responsibility
for, the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and have made no independent check or
verification thereof, on the basis of the foregoing, no facts have come to our
attention that have led us to believe that the Registration Statement or any
amendment or supplement thereto in effect as of the date hereof, at the time
it became effective, contained an untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto in effect as of the date hereof, as of its
issue date and as of the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
that we express no belief with respect to the financial statements, schedules
and other financial information included therein or excluded therefrom or the
exhibits to the Registration Statement.
This letter is furnished to you solely for your benefit and the
benefit of the other Underwriters in connection with the closing under the
Purchase Agreement occurring today and is not to be used, circulated, quoted
or otherwise referred to for any other purpose without our prior express
written permission, except to the extent that such use, circulation,
quotation, or reference is necessary so that the issuance of the Shares is not
treated as a "confidential transaction" within the meaning of Treasury
Regulations section 1.6011-4(b)(3).
Very truly yours,
FORM OF OPINION WITH RESPECT TO TAX MATTERS OF FUND'S
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b)
We have acted as counsel to The Gabelli Global Utility & Income
Trust, a statutory trust (the "Fund") created under the Delaware Statutory
Trust Act (the "Delaware Statutory Trust Act"), in connection with the
preparation, execution and delivery of the Purchase Agreement, dated April [ ],
2004 (the "Purchase Agreement"), by and among the Fund, Gabelli Funds, LLC
(the "Advisor"), and you, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
as representative of the several underwriters named therein (the
"Underwriters"), relating to the issuance and sale by the Fund of [ ] shares
(the "Shares") of the Fund's common shares of beneficial interest, par value
$0.001 per share (the "Common Shares"). This opinion is being delivered
pursuant to Section 5(b) of the Purchase Agreement.
In rendering the opinion set forth herein, we have examined and
relied on originals or copies of the final Prospectus and Statement of
Additional Information of the Fund, as filed with the Commission on [ ], 2004
pursuant to Rule 497(h) of the 1933 Act Rules and Regulations (collectively,
the "Prospectus") and such other documents as we have deemed necessary or
appropriate as a basis for the opinion set forth below.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as facsimile, electronic, certified or photostatic
copies, and the authenticity of the originals of such copies. As to any facts
material to the opinion expressed herein that we did not independently
establish or verify, we have relied upon statements and representations of
officers and other representatives of the Fund, the Advisor, the Sub-Advisor
and others and of public officials. Capitalized terms used herein and not
otherwise defined herein shall have the same meanings herein as ascribed
thereto in the Purchase Agreement.
In rendering our opinion we have considered the current provisions of
the Internal Revenue Code of 1986, as amended, Treasury regulations
promulgated thereunder, judicial authorities, interpretive rulings of the
Internal Revenue Service (the "Service"), and such other authorities as we
have considered relevant, all of which are subject to change or differing
interpretations, possibly on a retroactive basis. Moreover, there can be no
assurance that the opinion expressed herein will be accepted by the Service or
other relevant tax authorities or, if challenged, by a court of law. A change
in the authorities or in the accuracy or completeness of any of the
information, documents, certificates, records, statements, representations,
covenants, or assumptions on which our opinion is based could affect our
conclusions. This opinion is expressed as of the date hereof, and we are under
no obligation to supplement or revise our opinion to reflect any changes
(including changes that have retroactive effect) in applicable law or any
information, document, certificate, record, statement, representation,
covenant or assumption relied upon herein that becomes incorrect or untrue.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, although the
discussion in the Prospectus under the heading "Taxation" and in the Statement
of Additional Information under the heading "Taxation" does not purport to
discuss all possible United States federal income tax consequences relating to
the taxation of the Fund and the purchase, ownership and disposition of the
Common Shares, such discussion constitutes, in all material respects, a fair
summary of law and is based on our understanding of the Fund's proposed
operations as disclosed in the Prospectus.
Except as set forth above, we express no other opinion. This opinion
is being furnished only to you in connection with the closing under the
Purchase Agreement occurring today and is solely for your benefit and is not
to be relied upon by any other person for any other purpose without our prior
written consent.
We advise you that the Firm has rendered legal advice to the Advisor,
other investment funds advised by the Advisor and certain other of their
respective affiliates in connection with various matters.
Very truly yours,
Exhibit B
FORM OF OPINION OF COUNSEL FOR UNDERWRITERS
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
We have acted as your counsel in connection with the purchase by you
of [ ] shares of common stock, $.001 par value (the "Shares"), of The Gabelli
Global Utility & Income Trust, a Delaware statutory trust (the "Fund"),
pursuant to a Purchase Agreement, dated April [ ], 2004, by and among the
Fund, the Advisor and the Underwriters (the "Purchase Agreement"). This
opinion is given pursuant to Section 5(c) of the Purchase Agreement. Except as
otherwise indicated, capitalized terms used in this letter have the meanings
given to them in the Purchase Agreement.
In rendering the opinions expressed below, we have examined originals
or copies, certified or otherwise identified to our satisfaction, of the
Purchase Agreement, the Fund's Registration Statement (File Nos. 333-113621
and 811-21529) on Form N-2, as filed with the Commission on March 15, 2004, as
amended by Pre-Effective Amendment No. 1, as filed with the Commission on [ ],
2004, (the "Registration Statement"), the Fund's Registration Statement (File
Nos. 333-[ ] and 811-21529) on Form N-2, as filed with the Commission on [ ],
2004 pursuant to Rule 462(d) under the Securities Act of 1933, as amended (the
"Securities Act") (the "Rule 462(d) Registration Statement), the final
Prospectus and Statement of Additional Information of the Fund, as filed with
the Commission on [ ], 2004 pursuant to Rule 497(h) under the Securities Act
of 1933, as amended (the "Securities Act"), and the rules and regulations
promulgated thereunder, the notification of registration of the Fund on Form
N-8A, as filed with the Commission on [ ], 2004 under the Investment Company
Act of 1940, as amended (the "1940 Act"), the registration statement of the
Fund on Form 8-A, as filed with the Commission on [ ], 2004, and certain
resolutions of the Board of Trustees of the Fund, certified by an officer of
the Fund on the date hereof as being complete, accurate and in effect,
relating to the authorization of the Purchase Agreement and other related
matters. We have also examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents, corporate, trust, and
partnership records, certificates and letters of public officials and other
instruments as we have deemed necessary or appropriate for the purposes of
rendering the opinions set forth below. In examining all such documents, we
have assumed the genuineness of all signatures, the legal capacity of all
natural persons, the authenticity of all documents submitted to us, and the
conformity with the respective originals of all documents submitted to us as
certified, telecopied, photostatic or reproduced copies.
We have relied, as to all matters of fact, upon certificates and
written statements (including the representations made in the Purchase
Agreement) of officers, trustees and employees of, and accountants for, the
Fund and the due performance by the parties of their respective obligations
set forth in the Purchase Agreement.
When an opinion set forth below refers "to our knowledge," and
similar expressions as used herein, it is limited to the actual knowledge of
the attorneys of this firm involved in the representation of you in connection
with the transactions contemplated by the Purchase Agreement and, except as
set forth herein, without any special or independent investigation undertaken
for purposes of this opinion.
Based on, and subject to, the foregoing, the qualifications and
assumptions set forth herein and such examination of law as we have deemed
necessary, we are of the opinion that:
(i) The Fund is a statutory trust duly formed, validly existing and
in good standing under the laws of the State of Delaware with full trust power
to own, lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus;
(ii) The Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor, will be validly
issued, fully paid and, subject to the second to last paragraph of this
opinion letter, nonassessable;
(iii) Except as contemplated by the Purchase Agreement, no person is
entitled to any preemptive or other similar rights with respect to the Shares;
(iv) The Purchase Agreement and each of the Investment Advisory
Agreement, dated as of [ ], 2004, between the Fund and the Advisor (the
"Investment Advisory Agreement"), the Transfer Agency Services Agreement,
dated as of [ ], 2004, among the Fund and Equiserve Trust Company N.A. (the
"Transfer Agency Agreement"), and the Custodian Agreement, dated as of [ ],
2004 between the Fund and State Street Bank and Trust (the "Custodian
Agreement" and, together with the Investment Advisory Agreement and the
Transfer Agency Agreement, the "Fund Agreements") have been duly executed and
delivered by the Fund. Assuming due authorization, execution and delivery by
the other parties thereto, each of the Fund Agreements constitute the legal,
valid and binding obligation of the Fund enforceable in accordance with its
terms (except we express no opinion as to the reasonableness or fairness of
compensation paid under such agreements), subject as to enforcement to
bankruptcy, insolvency, moratorium, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles (regardless of whether enforceability is considered in a proceeding
in equity or at law);
(v) The Registration Statement, including the Rule 462(d)
Registration Statement, has been declared effective under the Securities Act;
any required filing of the Prospectus pursuant to Rule 497(c) or Rule 497(h)
has been made in the manner and within the time period required by Rule 497;
and, to the best of our knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued under the Securities Act, and,
to the best of our knowledge, no 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
threatened by the Commission;
(vi) The Registration Statement, including the Rule 462(d)
Registration Statement, the Rule 430A Information, 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
and supporting schedules included therein or omitted therefrom, 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 Securities Act, the 1940
Act and the Rules and Regulations;
(vii) The form of the certificate used to evidence the Shares do not
comply with any requirements of the Delaware Statutory Trust law; and
(viii) The Shares conform in all material respects as to legal
matters to the description of them under the section entitled "Description of
Shares" in the Prospectus.
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 Fund, representatives of
PricewaterhouseCoopers LLP, the independent accountants who examined the
financial statements of the Fund included or incorporated by reference in the
Registration Statement and the Prospectus, and you and your representatives
and we have reviewed certain Fund 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
extent necessary to enable us to give the opinion with respect to the Fund in
paragraph (viii) above, 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 or incorporated by reference therein or omitted
therefrom, 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 or incorporated by reference therein or omitted
therefrom, as to which we do not express any belief), at the time the
Prospectus was issued, or at the date hereof, 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.
To the extent that any opinions stated herein relate to the laws of
Delaware, with your permission, we have relied upon the opinion of Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, dated the date hereof, a copy of which has
been delivered to you. Our opinion, to the extent based upon such reliance, is
limited by the qualifications, assumptions and conditions set forth in such
opinion in addition to those set forth herein.
This opinion is based upon the law as in effect and the facts known
to us on the date hereof. We have not undertaken to advise you of any
subsequent changes in the law or of any facts that hereafter may come to our
attention.
This letter is given solely for your benefit and may not be relied
upon by any other person for any purpose without our prior written consent in
each instance.
Very truly yours,