EXHIBIT 99.2H
▇▇▇▇▇ & Steers Worldwide Realty Income Fund, Inc.
Auction Preferred Shares
Par Value $0.001 Per Share
UNDERWRITING AGREEMENT
, 2005
UNDERWRITING AGREEMENT
, 2005
UBS Securities LLC
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Deutsche Bank Securities Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated
as Representatives
c/o UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇ & Steers Worldwide Realty Income Fund, Inc., a Maryland
corporation (the "Fund"), proposes to issue and sell to the underwriters named
in Schedule A annexed hereto (the "Underwriters") an aggregate of [ ]
preferred shares of beneficial interest of the Fund, par value $0.001 per share,
designated Series [ ] Auction Preferred Shares, with a liquidation preference of
$25,000 per share and [ ] preferred shares of beneficial interest of the Fund,
par value $0.001 per share, designated Series [ ] Auction Preferred Shares, with
a liquidation preference of $25,000 per share (collectively, the "APS").
The Fund has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively called the "Securities Act"), and with the provisions of the
Investment Company Act of 1940, as amended, and the rules and regulations
thereunder (collectively called the "Investment Company Act"), with the
Securities and Exchange Commission (the "Commission"), a registration statement
on Form N-2 (File Nos. 333-123561 and 811-21595), including a prospectus and a
statement of additional information, relating to the APS. The Fund has furnished
to the Representatives, for use by the Underwriters and by dealers, copies of
one or more preliminary prospectuses (including a preliminary statement of
additional information) (each thereof, including such preliminary statement of
additional information, being herein called a "Preliminary Prospectus") relating
to the APS. Except where the context otherwise requires, the registration
statement, as amended when it becomes effective (the "Effective Date"),
including all documents filed as a part thereof or incorporated by reference
therein, and including any information contained in a prospectus subsequently
filed with the Commission pursuant to Rule 497 under the Securities Act and
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Securities Act is herein called the
"Registration Statement", and the prospectus (including the statement of
additional information), in the form filed by the Fund with the Commission
pursuant to Rule 497 under the Securities Act or, if no such filing is required,
the form of final prospectus (including the form of final statement of
additional information) included in the Registration Statement at the time it
became effective, is herein called the "Prospectus." In addition, the Fund has
filed a Notification of Registration on Form N-8A (the "Notification") pursuant
to Section 8 of the Investment Company Act. UBS Securities LLC ("UBS Securities"
or the "Managing Representative") will act as managing representative for the
Underwriters.
▇▇▇▇▇ & Steers Capital Management, Inc., a New York corporation
("▇▇▇▇▇ & Steers" or the "Investment Manager") acts as the Fund's investment
manager pursuant to an Investment Management Agreement by and between the Fund
and the Investment Manager, dated as of February 22, 2005 (the "Investment
Management Agreement"). ▇▇▇▇▇▇▇▇ Rovers S.A. (the "Subadvisor" and together with
the
Investment Manager, the "Advisers") acts as the Fund's Subadvisor pursuant to a
Sub-Advisory Agreement between the Investment Manager and the Subadvisor, dated
as of February 22, 2005 (the "Sub-Advisory Agreement"). State Street Bank
and Trust Company acts as the custodian (the "Custodian") of the Fund's cash and
portfolio assets pursuant to a Custodian Agreement, dated as of March 9, 2001
and effective with respect to the Fund as of February 18, 2005 (the "Custodian
Agreement"). The Bank of New York acts as the Fund's transfer agent, dividend
disbursing agent and registrar with respect to the common shares of the Fund
(the "Transfer Agent") pursuant to a Transfer Agency Services Agreement, dated
as of March 10, 2005 (the "Transfer Agency Agreement"). The Investment Manager
will act as the administrator of the Fund pursuant to an Administration
Agreement, dated as of February 22, 2005 (the "Administration Agreement"). State
Street Bank and Trust Company will act as the sub-administrator of the Fund
pursuant to a Sub-Administration Agreement, dated as of February 18, 2005 (the
"Sub-Administration Agreement"). The Bank of New York will act as the Fund's
auction agent (the "Auction Agent") for the APS pursuant to an Auction Agency
Agreement, dated as of [ ], 2005 (the "Auction Agency Agreement"). The Fund will
enter into a Letter of Representations, dated as of [ ], 2005, with the
Depository Trust Company (the "DTC Notice").
The Fund, the Investment Manager, the Subadvisor and the Underwriters
agree as follows:
1. Sale and Purchase. Upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth, the
Fund agrees to sell to the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Fund the aggregate number
of APS set forth opposite the name of such Underwriter in Schedule A attached
hereto in each case at a purchase price per APS of $24,750. The Fund is advised
that the Underwriters intend (i) to make a public offering of their respective
portions of the APS as soon after the Effective Date as is advisable and (ii)
initially to offer the APS upon the terms set forth in the Prospectus. The
Underwriters may from time to time increase or decrease the public offering
price after the initial public offering to such extent as they may determine.
2. Payment and Delivery. Payment of the purchase price for the APS
shall be made by the Underwriters to the Fund by Federal Funds wire transfer,
against delivery of the certificates for the APS to the Representatives through
the facilities of the Depository Trust Company for the respective accounts of
the Underwriters. Such payment and delivery shall be made at a time mutually
agreed upon by the parties on the [third] business day following the date of
this Underwriting Agreement (unless another date shall be agreed to by the
Representatives and the Fund). The time at which such payment and delivery are
actually made is hereinafter sometimes called the "Time of Purchase."
A certificate in definitive form representing the APS registered in
the name of Cede & Co., as nominee for DTC, shall be delivered by or on behalf
of the Fund to DTC for the account of the Underwriters.
3. Representations and Warranties of the Fund and the Investment
Manager. Each of the Fund and the Investment Manager jointly and severally
represents and warrants to each Underwriter as follows:
(a) On (i) the Effective Date and the date on which the
Prospectus is first filed with the Commission pursuant to Rule 497(b),
(h) or (j) under the Securities Act, as the case may be, (ii) the date
on which any post-effective amendment to the Registration Statement
(except any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of this
Underwriting Agreement or (y) the date on which the distribution of
the APS is completed) became or becomes effective or any amendment or
supplement to the Prospectus was
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or is filed with the Commission and (iii) the Closing Date, the
Registration Statement, the Prospectus and any such amendment or
supplement thereto and the Notification complied or will comply in all
material respects with the requirements of the Securities Act and the
Investment Company Act, as the case may be. On the Effective Date and
on the date that any post-effective amendment to the Registration
Statement (except any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of this
Underwriting Agreement or (y) the date on which the distribution of
the APS is completed) became or becomes effective, neither the
Registration Statement nor any such amendment did or will contain any
untrue statement of a material fact or omit to state a material fact
required to be stated in it or necessary to make the statements in it
not misleading. Except as permitted under Rule 430A under the
Securities Act (and other applicable rules under Regulation C under
the Securities Act), the Preliminary Prospectus dated [ ], 2005 did
not, as of such date, contain any untrue statement of a material fact
or omit to state a material fact required to be stated in it or
necessary to make the statements in it, in light of the circumstances
under which they were made, not misleading. At the Effective Date and,
if applicable, the date the Prospectus or any amendment or supplement
to the Prospectus was or is filed with the Commission and at the
Closing Date, the Prospectus did not or will not, as the case may be,
contain any untrue statement of a material fact or omit to state a
material fact required to be stated in it or necessary to make the
statements in it, in light of the circumstances under which they were
made, not misleading. The foregoing representations in this Section
3(a) do not apply to statements or omissions relating to the
Underwriters made in reliance on and in conformity with information
furnished in writing to the Fund by the Underwriters expressly for use
in the Registration Statement, the Prospectus or any amendments or
supplements thereto, as described in Section 9(f) hereof.
(b) The Fund has been duly formed, is a validly existing
corporation under the laws of the State of Maryland, with full power
and authority to conduct all the activities conducted by it, to own or
lease all assets owned or leased by it and to conduct its business as
described in the Registration Statement and Prospectus, and the Fund
is duly licensed and qualified to do business and in good standing in
each jurisdiction in which its ownership or leasing of property or its
conducting of business requires such qualification, except where the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Fund, and the Fund owns, possesses or
has obtained and currently maintains all governmental licenses,
permits, consents, orders, approvals and other authorizations, whether
foreign or domestic, necessary to carry on its business as
contemplated in the Prospectus. The Fund has no subsidiaries.
(c) The capitalization of the Fund is as set forth in the
Registration Statement and the Prospectus. The common shares of
beneficial interest of the Fund, par value $0.001 per share (the
"Common Shares"), and the APS conform in all material respects to the
description of them in the Prospectus. All the outstanding Common
Shares have been duly authorized and are validly issued, fully paid
and nonassessable. The APS to be issued and delivered to and paid for
by the Underwriters in accordance with this Underwriting Agreement
against payment therefor as provided by this Underwriting Agreement
have been duly authorized and when issued and delivered to the
Underwriters will have been validly issued and will be fully paid and
nonassessable. No person is entitled to any preemptive or other
similar rights with respect to the issuance of the APS.
(d) The Fund is duly registered with the Commission under the
Investment Company Act as a non-diversified, closed-end management
investment company, and, subject to the filing of any final amendment
to the Registration Statement (a "Final Amendment"), if not already
filed, all action under the Securities Act and the Investment Company
Act, as the case may be,
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necessary to make the public offering and consummate the sale of the
APS as provided in this Underwriting Agreement has or will have been
taken by the Fund.
(e) The Fund has full power and authority to enter into each of
this Underwriting Agreement, the Investment Management Agreement, the
Sub-Advisory Agreement, the Administration Agreement, the Custodian
Agreement, the Sub-Administration Agreement, the Transfer Agency
Agreement, the Auction Agency Agreement and the DTC Notice
(collectively, the "Fund Agreements") and to perform all of the terms
and provisions hereof and thereof to be carried out by it and (i) each
Fund Agreement has been duly authorized, executed and delivered by or
on behalf of the Fund, (ii) each Fund Agreement does not violate any
of the applicable provisions of the Investment Company Act or the
Investment Advisers Act of 1940, as amended, and the rules and
regulations thereunder (collectively called the "Advisers Act"), as
the case may be, and (iii) assuming due authorization, execution and
delivery by the other parties thereto, each Fund Agreement constitutes
the legal, valid and binding obligation of the Fund enforceable in
accordance with its terms, (A) subject, as to enforcement, to
applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general equitable principles
(regardless of whether enforcement is sought in a proceeding in equity
or at law) and (B) except as rights to indemnity thereunder may be
limited by federal or state securities laws.
(f) None of (i) the execution and delivery by the Fund of the
Fund Agreements, (ii) the issue and sale by the Fund of the APS as
contemplated by this Underwriting Agreement and (iii) the performance
by the Fund of its obligations under any of the Fund Agreements or
consummation by the Fund of the other transactions contemplated by the
Fund Agreements conflicts with or will conflict with, or results or
will result in a breach of, or a default under, the Articles of
Incorporation of the Fund, as amended through the date hereof (the
"Articles of Incorporation"), and the Amended and Restated Bylaws of
the Fund (the "Bylaws"), or any agreement or instrument to which the
Fund is a party or by which the Fund or its property is bound or
affected, or any law, rule or regulation, or order of any court,
governmental instrumentality, securities exchange or association or
arbitrator, whether foreign or domestic, applicable to the Fund, other
than state securities or "blue sky" laws applicable in connection with
the purchase and distribution of the APS by the Underwriters pursuant
to this Underwriting Agreement.
(g) No person has any right to the registration of any securities
of the Fund because of the filing of the registration statement.
(h) No consent, approval, authorization or order of any court or
governmental agency or body or securities exchange or association,
whether foreign or domestic, is required by the Fund for the
consummation by the Fund of the transactions to be performed by the
Fund or the performance by the Fund of all of its obligations
hereunder, except such as (i) have been obtained under the Securities
Act, the Investment Company Act or the Advisers Act, and (ii) may be
required by the New York Stock Exchange or under state securities or
"blue sky" laws, in connection with the purchase and distribution of
the APS by the Underwriters pursuant to this Underwriting Agreement.
(i) PricewaterhouseCoopers LLP, whose report appears in the
Prospectus, is an independent registered public accounting firm as
required by the Securities Act and the Investment Company Act.
(j) The statement of assets and liabilities included in the
Registration Statement and the Prospectus presents fairly in all
material respects, in accordance with generally accepted
4
accounting principles in the United States applied on a consistent
basis, the financial position of the Fund as of the date indicated.
(k) The Fund will maintain a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing
assets through an asset reconciliation procedure or otherwise at
reasonable intervals and appropriate action is taken with respect to
any differences.
(l) Since the date as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, (i) there has been no material adverse change in the
condition, financial or otherwise, business affairs or business of the
Fund, whether or not arising in the ordinary course of business, (ii)
there have been no transactions entered into by the Fund other than
those in the ordinary course of its business and (iii) there has been
no dividend or distribution of any kind declared, paid or made on any
class of its capital shares.
(m) There is no action, suit or proceeding before or by any
court, commission, regulatory body, administrative agency or other
governmental agency or body, foreign or domestic, now pending, or, to
the knowledge of the Fund, threatened against or affecting the Fund,
which is of a character required to be described in the Registration
Statement or the Prospectus; and there are no contracts, franchises or
other documents that are of a character required to be described in,
or that are required to be filed as exhibits to, the Registration
Statement that have not been described or filed as required. There is
no action, suit or proceeding before or by any court, commission,
regulatory body, administrative agency or other governmental agency or
body, foreign or domestic, now pending, or, to the knowledge of the
Fund, threatened against or affecting the Fund, which other than those
that, if determined adversely to the Fund, would have a material
adverse effect.
(n) The Fund intends to direct the investment of the proceeds of
the offering of the APS in such a manner as to comply with the
requirements of Subchapter M of the Internal Revenue Code of 1986, as
amended (the "Code").
(o) The Common Shares are listed on the New York Stock Exchange.
(p) The APS have been, or prior to the Closing Date will be,
assigned a rating of Aaa/AAA by any two of ▇▇▇▇▇'▇ Investors Service,
Inc. ("Moody's"), ▇▇▇▇▇ Ratings, Inc. ("Fitch") and Standard & Poor's
Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P").
(q) No advertising, sales literature or other promotional
materials (excluding road show slides or road show tapes) were
authorized or prepared by or on behalf of the Fund, the Investment
Manager, the Subadvisor or any representative thereof for use in
connection with the public offering or sale of the APS (collectively
referred to as the "Sales Materials"); any road show slides or road
show tapes complied and comply in all material respects with the
applicable requirements of the Securities Act and the rules and
interpretations of the NASD, Inc.; and no broker kits, road show
slides, road show tapes or sales materials authorized or prepared by
the Fund or authorized in writing or prepared on behalf of the Fund by
the Investment Manager or the Subadvisor or their counsel for use in
connection with the public offering of the APS contains an
5
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading.
In addition, any certificate signed by any officer of the Fund and
delivered to the Underwriters or counsel for the Underwriters in connection with
the offering of the APS shall be deemed to be a representation and warranty by
the Fund as to matters covered thereby, to each Underwriter.
4. Representations and Warranties of the Investment Manager and the
Subadvisor. Each of the Investment Manager and the Subadvisor represents to each
Underwriter as follows:
(a) Such Adviser has been duly formed, is validly existing as a
corporation under the laws of the State of New York, in the case of
the Investment Manager, or as a limited liability company under the
laws of Belgium, in the case of the Subadvisor, with full power and
authority to conduct all of the activities conducted by it, to own or
lease all of the assets owned or leased by it and to conduct its
business as described in the Registration Statement and Prospectus,
and such Adviser is duly licensed and qualified to do business and in
good standing in each jurisdiction in which it is required to be so
qualified, except to the extent that failure to be so qualified or be
in good standing would not have a material adverse effect on such
Adviser's ability to perform its obligations under this Agreement, the
Investment Management Agreement and the Sub-Advisory Agreement to
which it is a party; and such Adviser owns, possesses or has obtained
and currently maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations, whether foreign or
domestic, necessary to carry on its business as contemplated in the
Registration Statement and the Prospectus.
(b) Such Adviser is (i) duly registered as an investment adviser
under the Advisers Act and (ii) not prohibited by the Advisers Act or
the Investment Company Act from acting as the investment adviser for
the Fund as contemplated by the Investment Management Agreement, the
Sub-Advisory Agreement, the Registration Statement and the Prospectus.
(c) Such Adviser has full power and authority to enter into each
of this Underwriting Agreement, the Investment Management Agreement,
the Sub-Advisory Agreement, the Administration Agreement, and the
Sub-Administration Agreement to which such Adviser is a party
(collectively, the "Adviser Agreements"), and to carry out all the
terms and provisions hereof and thereof to be carried out by it; and
each Adviser Agreement has been duly and validly authorized, executed
and delivered by such Adviser; none of the Adviser Agreements violate
any of the applicable provisions of the Investment Company Act or the
Advisers Act; and assuming due authorization, execution and delivery
by the other parties thereto, each Adviser Agreement constitutes a
legal, valid and binding obligation of such Adviser, enforceable in
accordance with its terms, (i) subject, as to enforcement, to
applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general equitable principles
(regardless of whether enforcement is sought in a proceeding in equity
or at law) and (ii) except as rights to indemnity thereunder may be
limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by such Adviser of any
Adviser Agreement nor (ii) the consummation by such Adviser of the
transactions contemplated by, or the performance of its obligations
under, any Adviser Agreement conflicts or will conflict with, or
results or will result in a breach of, the Articles of Incorporation
or By-Laws of such Adviser or any agreement or instrument to which
such Adviser is a party or by which such Adviser is bound, or any law,
rule or regulation, or order of any court, governmental
instrumentality, securities exchange or association or arbitrator,
whether foreign or domestic, applicable to such Adviser.
6
(e) No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or association,
whether foreign or domestic, is required for the consummation of the
transactions contemplated in, or the performance by such Adviser of
its obligations under, any Adviser Agreement, as the case may be,
except such as (i) have been obtained under the Securities Act, the
Investment Company Act or the Advisers Act, and (ii) may be required
by the New York Stock Exchange or under state securities or "blue sky"
laws, in connection with the purchase and distribution of the APS by
the Underwriters pursuant to this Underwriting Agreement.
(f) The description of such Adviser and its business, and the
statements attributable to such Adviser in the Registration Statement
and the Prospectus, comply with the requirements of the Securities Act
and the Investment Company Act and do not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading.
(g) Except as disclosed, there is no action, suit or proceeding
before or by any court, commission, regulatory body, administrative
agency or other governmental agency or body, foreign or domestic, now
pending or, to the knowledge of such Adviser, threatened against or
affecting such Adviser of a nature required to be disclosed in the
Registration Statement or Prospectus or that might reasonably be
expected to result in any material adverse change in the condition,
financial or otherwise, business affairs or business prospects of such
Adviser or the ability of such Adviser to fulfill its respective
obligations under any Adviser Agreement.
(h) Neither the Fund nor the Advisers have made available any
promotional materials intended for use only by qualified
broker-dealers and registered representatives thereof by means of an
Internet web site or similar electronic means with respect to the
offering contemplated by this Agreement.
In addition, any certificate signed by any officer of the Investment
Manager or the Subadvisor and delivered to the Underwriters or counsel for the
Underwriters in connection with the offering of the Shares shall be deemed to be
a representation and warranty by the Investment Manager or the Subadvisor, as
applicable, as to matters covered thereby, to each Underwriter.
5. Agreements of the Parties.
(a) If the registration statement relating to the APS has not yet
become effective, the Fund will promptly file a Final Amendment, if
not previously filed, with the Commission, and will use its best
efforts to cause such registration statement to become effective and,
as soon as the Fund is advised, will advise the Managing
Representative when the Registration Statement or any amendment
thereto has become effective. If the Registration Statement has become
effective and the Prospectus contained therein omits certain
information at the time of effectiveness pursuant to Rule 430A under
the Securities Act, the Fund will file a 430A Prospectus pursuant to
Rule 497(h) under the Securities Act as promptly as practicable, but
no later than the second business day following the earlier of the
date of the determination of the offering price of the APS or the date
the Prospectus is first used after the Effective Date. If the
Registration Statement has become effective and the Prospectus
contained therein does not so omit such information, the Fund will
file a Prospectus pursuant to Rule 497(b) or a certification pursuant
to Rule 497(j) under the Securities Act as promptly as practicable,
but no later than the fifth business day following the date of the
later of the Effective Date or the commencement of the public offering
of the APS after the Effective Date. In either case, the Fund will
provide the Managing Representative satisfactory evidence of the
filing. The Fund will not file with the Commission
7
any Prospectus or any other amendment (except any post-effective
amendment which is filed with the Commission after the later of (x)
one year from the date of this Underwriting Agreement or (y) the date
on which distribution of the APS is completed) or supplement to the
Registration Statement or the Prospectus unless a copy has first been
submitted to the Managing Representative a reasonable time before its
filing and the Managing Representative has not objected to it in
writing within a reasonable time after receiving the copy.
(b) For the period of one year from the date hereof, the Fund
will advise the Managing Representative promptly (i) of the issuance
by the Commission of any order in respect of the Fund, the Investment
Manager or the Subadvisor, which relates to the Fund, or which relates
to any material arrangements or proposed material arrangements
involving the Fund, the Investment Manager or the Subadvisor, (ii) of
the initiation or threatening of any proceedings for, or receipt by
the Fund of any notice with respect to, any suspension of the
qualification of the APS for sale in any jurisdiction or the issuance
of any order by the Commission suspending the effectiveness of the
Registration Statement, (iii) of receipt by the Fund, or any
representative or attorney of the Fund, of any other communication
from the Commission relating in any material way to the Fund, the
Registration Statement, the Notification, any Preliminary Prospectus,
the Prospectus or to the transactions contemplated by this
Underwriting Agreement and (iv) the issuance by any court, regulatory
body, administrative agency or other governmental agency or body,
whether foreign or domestic, of any order, ruling or decree, or the
threat to initiate any proceedings with respect thereto, regarding the
Fund, which relates in any material way to the Fund or any material
arrangements or proposed material arrangements involving the Fund. The
Fund will make every reasonable effort to prevent the issuance of any
order suspending the effectiveness of the Registration Statement and,
if any such order is issued, to obtain its lifting as soon as
possible.
(c) If not delivered prior to the date of this Underwriting
Agreement, the Fund will deliver to the Managing Representative,
without charge, a signed copy of the Registration Statement and the
Notification and of any amendments (except any post-effective
amendment which is filed with the Commission after the later of (x)
one year from the date of this Underwriting Agreement or (y) the date
on which the distribution of the APS is completed) to either the
Registration Statement or the Notification (including all exhibits
filed with any such document) and as many conformed copies of the
Registration Statement and any amendments thereto (except any
post-effective amendment which is filed with the Commission after the
later of (x) one year from the date of this Underwriting Agreement or
(y) the date on which the distribution of the APS is completed)
(excluding exhibits) as the Managing Representative may reasonably
request.
(d) During such period as a prospectus is required by law to be
delivered by an underwriter or a dealer, the Fund will deliver,
without charge, to the Representatives, the Underwriters and any
dealers, at such office or offices as the Representatives may
designate, as many copies of the Prospectus as the Representatives may
reasonably request, and, if any event occurs during such period as a
result of which it is necessary to amend or supplement the Prospectus,
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading in any material respect, or
if during such period it is necessary to amend or supplement the
Prospectus to comply with the Securities Act or the Investment Company
Act, the Fund promptly will prepare, submit to the Managing
Representative, file with the Commission and deliver, without charge,
to the Underwriters and to dealers (whose names and addresses the
Managing Representative will furnish to the Fund) to whom APS may have
been sold by the Underwriters, and to other dealers on request,
amendments or supplements to the Prospectus so that the statements in
such Prospectus, as so amended or supplemented, will not, in
8
light of the circumstances under which they were made, be misleading
in any material respect and will comply with the Securities Act and
the Investment Company Act. Delivery by the Underwriters of any such
amendments or supplements to the Prospectus will not constitute a
waiver of any of the conditions in Section 6 hereof.
(e) The Fund will make generally available to holders of the
Fund's securities, as soon as practicable but in no event later than
the last day of the 18th full calendar month following the calendar
quarter in which the Effective Date falls, an earnings statement, if
applicable, satisfying the provisions of the last paragraph of Section
11(a) of the Securities Act and, at the option of the Fund, Rule 158
under the Securities Act.
(f) The Fund will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Fund's counsel and accountants
in connection with the registration of the APS and all other expenses
in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus
and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or reproducing this Underwriting Agreement and any other
documents in connection with the offering, purchase, sale and delivery
of the APS (including advertising expenses of the Underwriters, if
any); (iii) the cost of preparing share certificates; (iv) the
expenses (including, but not limited to, travel, hotels and other
accommodations) incurred by the Fund's directors, officers, employees
and other personnel in connection with meetings held with registered
brokers in connection with the offering of the APS, the preparing to
market and the marketing of the APS; (v) any fees charged by
securities rating services for rating the APS; (vi) the fees and
expenses of the DTC and its nominee, the Custodian and the Auction
Agent; and (vii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for. It is understood, however, that, except as
provided in this Section 5 and Section 7 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their
counsel and stock transfer taxes, if any, on resale of any of the APS
by them, except any advertising expenses connected with any offers
they may make.
(g) If the transactions contemplated by this Underwriting
Agreement are not consummated, except as otherwise provided herein, no
party will be under any liability to any other party, except that (i)
if this Underwriting Agreement is terminated by (x) the Fund, the
Investment Manager or the Subadvisor pursuant to any of the provisions
hereof or (y) by the Representatives or the Underwriters because of
any inability, failure or refusal on the part of the Fund, the
Investment Manager or the Subadvisor to comply with any material terms
or because any of the conditions in Section 6 are not satisfied, the
Investment Manager or the Subadvisor or such Adviser's affiliates and
the Fund, jointly and severally, will reimburse the Underwriters for
all out-of-pocket expenses (including the reasonable fees,
disbursements and other charges of their counsel) reasonably incurred
by them in connection with the proposed purchase and sale of the APS
and (ii) no Underwriter who has failed or refused to purchase the APS
agreed to be purchased by it under this Underwriting Agreement, in
breach of its obligations pursuant to this Underwriting Agreement,
will be relieved of liability to the Fund, the Investment Manager, the
Subadvisor and the other Underwriters for damages occasioned by its
default.
(h) Without the prior written consent of the Managing
Representative, the Fund will not offer, sell or register with the
Commission, or announce an offering of, any equity securities of the
Fund, within 180 days after the Effective Date, except for the APS as
described in the Prospectus and any issuance of Common Shares pursuant
to the dividend reinvestment plan established by the Fund.
9
(i) The Fund will direct the investment of the net proceeds of
the offering of the APS in such a manner as to comply with the
investment objectives and policies of the Fund as described in the
Prospectus.
(j) No later than the Closing Date, the Underwriters will
provide, and will cause any selling group member to whom they have
sold APS to provide, the Auction Agent with a list of the record names
of the persons to whom they have sold APS, the number of APS sold to
each such person, and the number of APS they are holding as of the
Closing Date; provided that in lieu thereof, an Underwriter may
provide the Auction Agent with a list indicating itself as the sole
holder of all the APS sold by such Underwriter.
6. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters to purchase the APS are subject to the accuracy on the date of this
Underwriting Agreement, and on the Closing Date, of the representations of the
Fund, the Investment Manager and the Subadvisor in this Underwriting Agreement,
to the accuracy and completeness of all material statements made by the Fund,
the Investment Manager or the Subadvisor or any of their respective officers in
any certificate delivered to the Managing Representative or its counsel pursuant
to this Underwriting Agreement, to the performance by the Fund, the Investment
Manager and the Subadvisor of their respective obligations under this
Underwriting Agreement and to each of the following additional conditions:
(a) The Registration Statement must have become effective by 5:30
p.m., New York City time, on the date of this Underwriting Agreement
or such later date and time as the Managing Representative consents to
in writing. The Prospectus must have been filed in accordance with
Rule 497(b) or (h) or a certificate must have been filed in accordance
with Rule 497(j), as the case may be, under the Securities Act.
(b) No order suspending the effectiveness of the Registration
Statement may be in effect and no proceedings for such purpose may be
pending before or, to the knowledge of counsel to the Underwriters,
threatened by the Commission, and any requests for additional
information on the part of the Commission (to be included in the
Registration Statement or the Prospectus or otherwise) must be
complied with or waived to the reasonable satisfaction of the Managing
Representative.
(c) Since the dates as of which information is given in the
Registration Statement and the Prospectus, (i) there must not have
been any material change in the terms of the Common Shares, the APS or
the liabilities of the Fund except as set forth in or contemplated by
the Prospectus; (ii) there must not have been any material adverse
change in the general affairs, prospects, management, business,
financial condition or results of operations of the Fund, the
Investment Manager or the Subadvisor whether or not arising from
transactions in the ordinary course of business as set forth in or
contemplated by the Prospectus which in the judgment of the Managing
Representative would materially adversely affect the market for the
APS; (iii) the Fund must not have sustained any material loss or
interference with its business from any court or from legislative or
other governmental action, order or decree, whether foreign or
domestic, or from any other occurrence not described in the
Registration Statement and Prospectus; and (iv) there must not have
occurred any event that makes untrue or incorrect in any material
respect any statement or information contained in the Registration
Statement or Prospectus or that is not reflected in the Registration
Statement or Prospectus but should be reflected therein in order to
make the statements or information therein (in the case of the
Prospectus, in light of the circumstances in which they were made) not
misleading in any material respect; if, in the judgment of the
Managing Representative, any such development referred to in clause
(i), (ii), (iii) or (iv) of this paragraph (c) makes it impracticable
or inadvisable to consummate the sale and
10
delivery of the Shares pursuant to this Underwriting Agreement by the
Underwriters, at the initial public offering price of the Shares.
(d) The Managing Representative must have received on the Closing
Date a certificate, dated such date, of the President or a
Vice-President and the chief financial or accounting officer of each
of the Fund, the Investment Manager and the Subadvisor certifying (in
their capacity as such officers and, with respect to clauses (ii),
(iii) and (vi) below, on behalf of the Fund and such Adviser, as the
case may be) that (i) the signers have carefully examined the
Registration Statement, the Prospectus, and this Underwriting
Agreement, (ii) the representations of the Fund (with respect to the
certificates from such Fund officers), the representations of the
Investment Manager (with respect to the certificates from such
officers of the Investment Manager) and the representations of the
Subadvisor (with respect to the certificates from such officers of the
Subadvisor) in this Underwriting Agreement are accurate on and as of
the date of the certificate, (iii) there has not been any material
adverse change in the general affairs, prospects, management,
business, financial condition or results of operations of the Fund
(with respect to the certificates from such Fund officers), the
Investment Manager (with respect to the certificates from such
officers of the Investment Manager) or the Subadvisor (with respect to
the certificates from such officers of the Subadvisor), which change
would materially and adversely affect the ability of the Fund, the
Investment Manager or the Subadvisor, as the case may be, to fulfill
its obligations under this Underwriting Agreement, the Investment
Management Agreement (with respect to the certificates from such
officers of the Investment Manager) or the Sub-Advisory Agreement
(with respect to the certificates from such officers of the
Subadvisor), whether or not arising from transactions in the ordinary
course of business, (iv) with respect to the Fund only, to the
knowledge of such officers after reasonable investigation, no order
suspending the effectiveness of the Registration Statement,
prohibiting the sale of any of the APS or otherwise having a material
adverse effect on the Fund has been issued and no proceedings for any
such purpose are pending before or threatened by the Commission or any
other regulatory body, whether foreign or domestic, (v) to the
knowledge of the officers of each of the Investment Manager and the
Subadvisor, after reasonable investigation, no order having a material
adverse effect on the ability of such Adviser to fulfill its
obligations under this Underwriting Agreement, the Investment
Management Agreement or the Sub-Advisory Agreement (with respect to
the certificates from such officers of the Investment Manager) and
this Underwriting Agreement or the Sub-Advisory Agreement (with
respect to the certificates from such officers of the Subadvisor), as
the case may be, has been issued and no proceedings for any such
purpose are pending before or threatened by the Commission or any
other regulatory body, whether foreign or domestic, and (vi) each of
the Fund (with respect to the certificates from such Fund officers),
the Investment Manager (with respect to the certificates from such
officers of the Investment Manager) and the Subadvisor (with respect
to the certificates from such officers of the Subadvisor) has
performed all of its respective agreements that this Underwriting
Agreement requires it to perform by the Closing Date (to the extent
not waived in writing by the Managing Representative).
(e) The Managing Representative must have received on the Closing
Date the opinions, dated the Closing Date, substantially in the form
of Schedules B, C and D to this Underwriting Agreement from the
counsel identified in each such Schedule.
(f) The Managing Representative must have received on the Closing
Date from ▇▇▇▇▇▇▇▇ Chance US LLP an opinion, dated the Closing Date,
with respect to the Fund, the APS, the Registration Statement and the
Prospectus, this Underwriting Agreement and the form and sufficiency
of all proceedings taken in connection with the sale and delivery of
the APS. Such opinion and proceedings shall fulfill the requirements
of this Section 6(f) only if such opinion and
11
proceedings are satisfactory in all respects to the Managing
Representative. The Fund, the Investment Manager and the Subadvisor
must have furnished to such counsel such documents as counsel may
reasonably request for the purpose of enabling them to render such
opinion.
(g) The Managing Representative must have received on the date
this Underwriting Agreement is signed and delivered by you a signed
letter, dated such date, substantially in the form of Schedule E to
this Underwriting Agreement from the independent registered public
accounting firm designated in such Schedule. The Managing
Representative also must have received on the Closing Date a signed
letter from the independent registered public accounting firm, dated
as of the Closing Date, confirming on the basis of a review in
accordance with the procedures set forth in their earlier letter that
nothing has come to their attention during the period from a date not
more than five business days before the date of this Underwriting
Agreement, specified in the letter, to a date not more than five
business days before the Closing Date, that would require any change
in their letter referred to in the foregoing sentence.
(h) The APS shall have been accorded a rating of Aaa/AAA by any
two of ▇▇▇▇▇'▇, Fitch and S&P. Letters to such effect, dated on or
before the Closing Date, shall have been delivered to the Managing
Representative.
(i) As of the Closing Date, and assuming the receipt of the net
proceeds from the sale of the APS, the Investment Company Act
Preferred Shares Asset Coverage and the APS Basic Maintenance Amount
(each as defined in the Prospectus) each will be met.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Underwriting Agreement will comply only if they are in form
and scope reasonably satisfactory to counsel for the Underwriters, provided that
any such documents, forms of which are annexed hereto, shall be deemed
satisfactory to such counsel if substantially in such form.
7. Termination. This Underwriting Agreement may be terminated by the
Managing Representative by notifying the Fund at any time:
(a) before the later of the effectiveness of the Registration
Statement and the time when any of the APS are first generally offered
pursuant to this Underwriting Agreement by the Managing Representative
to dealers by letter or telegram;
(b) at or before the Closing Date if, in the sole judgment of the
Managing Representative, payment for and delivery of any APS is
rendered impracticable or inadvisable because (i) trading in the APS
or the equity securities of the Fund is suspended by the Commission or
by the principal exchange that lists the Common Shares, (ii) trading
in securities generally on the New York Stock Exchange or the Nasdaq
Stock Market shall have been suspended or limited or minimum or
maximum prices shall have been generally established on such exchange
or over-the-counter market, (iii) additional material governmental
restrictions, not in force on the date of this Underwriting Agreement,
have been imposed upon trading in securities or trading has been
suspended on any U.S. securities exchange, (iv) a general banking
moratorium has been established by U.S. federal or New York
authorities or (v) any material adverse change in the financial or
securities markets in the United States or in political, financial or
economic conditions in the United States or any outbreak or material
escalation of hostilities or declaration by the United States of a
national emergency or war or other calamity, terrorist activity or
crisis shall have occurred the effect of any of which is such as to
make it, in the sole judgment of the Managing Representative,
impracticable or inadvisable to market the APS on the terms and in the
manner contemplated by the Prospectus; or
12
(c) at or before the Closing Date, if any of the conditions
specified in Section 6 have not been fulfilled when and as required by
this Underwriting Agreement.
8. Substitution of Underwriters. If one or more of the Underwriters
fails (other than for a reason sufficient to justify the termination of this
Underwriting Agreement) to purchase on the Closing Date the APS agreed to be
purchased on the Closing Date by such Underwriter or Underwriters, the Managing
Representative may find one or more substitute underwriters to purchase such APS
or make such other arrangements as the Managing Representative deems advisable,
or one or more of the remaining Underwriters may agree to purchase such APS in
such proportions as may be approved by the Managing Representative, in each case
upon the terms set forth in this Underwriting Agreement. If no such arrangements
have been made within 24 hours after the Closing Date, and
(a) the number of APS to be purchased by the defaulting
Underwriters on the Closing Date does not exceed 10% of the APS that
the Underwriters are obligated to purchase on such Closing Date, each
of the nondefaulting Underwriters will be obligated, severally and not
jointly, to purchase such APS on the terms set forth in this
Underwriting Agreement in proportion to their respective obligations
under this Underwriting Agreement, or
(b) the number of APS to be purchased by the defaulting
Underwriters on the Closing Date exceeds 10% of the APS to be
purchased by all the Underwriters on the Closing Date, the Fund will
be entitled to an additional period of 24 hours within which to find
one or more substitute underwriters reasonably satisfactory to the
Managing Representative to purchase such APS on the terms set forth in
this Underwriting Agreement.
Upon the occurrence of the circumstances described in the foregoing
paragraph (b), either the Managing Representative or the Fund will have the
right to postpone the Closing Date for not more than five business days in order
that necessary changes and arrangements (including any necessary amendments or
supplements to the Registration Statement or the Prospectus) may be effected by
the Managing Representative and the Fund. If the number of APS to be purchased
on the Closing Date by such defaulting Underwriter or Underwriters exceeds 10%
of the APS that the Underwriters are obligated to purchase on the Closing Date,
and none of the nondefaulting Underwriters or the Fund makes arrangements
pursuant to this Section within the period stated for the purchase of the APS
that the defaulting Underwriters agreed to purchase, this Underwriting Agreement
will terminate without liability on the part of any nondefaulting Underwriter,
the Fund, the Investment Manager or the Subadvisor, except as provided in
Sections 5(g) and 9 hereof. Any action taken under this Section will not affect
the liability of any defaulting Underwriter to the Fund, the Investment Manager
or the Subadvisor or to any nondefaulting Underwriters arising out of such
default. A substitute underwriter will become an Underwriter for all purposes of
this Underwriting Agreement.
9. Indemnity and Contribution.
(a) Each of the Fund and the Investment Manager, jointly and
severally, agrees to indemnify, defend and hold harmless each
Underwriter, its partners, directors and officers, and any person who
controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, and their successors
and assigns of all of the foregoing persons from and against any loss,
damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or
any such person may incur under the Securities Act, the Exchange Act,
the Investment Company Act, the Advisers Act, the common law or
otherwise, insofar as such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement
(or in the Registration Statement as amended by any post-effective
13
amendment thereof by the Fund) or in a Prospectus (the term
"Prospectus" for the purpose of this Section 9 being deemed to include
any Preliminary Prospectus, the sales materials, the Prospectus and
the Prospectus as amended or supplemented by the Fund), or arises out
of or is based upon any omission or alleged omission to state a
material fact required to be stated in either such Registration
Statement or Prospectus or necessary to make the statements made
therein (with respect to the Prospectus, in light of the circumstances
under which they were made) not misleading, except insofar as any such
loss, damage, expense, liability or claim arises out of or is based
upon any untrue statement or alleged untrue statement of a material
fact contained in and in conformity with information furnished in
writing by or on behalf of any Underwriter to the Fund or the
Investment Manager expressly for use with reference to any Underwriter
in such Registration Statement or such Prospectus or arises out of or
is based upon any omission or alleged omission to state a material
fact in connection with such information required to be stated in such
Registration Statement or such Prospectus or necessary to make such
information (with respect to the Prospectus, in light of the
circumstances under which they were made) not misleading, provided,
however, that the indemnity agreement contained in this subsection (a)
with respect to any Preliminary Prospectus or amended Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or to
the benefit of any person controlling such Underwriter) from whom the
person asserting any such loss, damage, expense, liability or claim
purchased the APS which is the subject thereof if the Prospectus
corrected any such alleged untrue statement or omission and if such
Underwriter failed to send or give a copy of the Prospectus to such
person at or prior to the written confirmation of the sale of such APS
to such person, unless the failure is the result of noncompliance by
the Fund with Section 5(d) hereof.
If any action, suit or proceeding (together, a "Proceeding") is
brought against an Underwriter or any such person in respect of which
indemnity may be sought against the Fund or the Investment Manager
pursuant to the foregoing paragraph, such Underwriter or such person
shall promptly notify the Fund or the Investment Manager in writing of
the institution of such Proceeding and the Fund or the Investment
Manager shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified
party and payment of all reasonable fees and expenses; provided,
however, that the omission to so notify the Fund or the Investment
Manager shall not relieve the Fund or the Investment Manager from any
liability which the Fund or the Investment Manager may have to any
Underwriter or any such person or otherwise. Such Underwriter or such
person shall have the right to employ its or their own counsel in any
such case, but the reasonable fees and expenses of such counsel shall
be at the expense of such Underwriter or of such person unless the
employment of such counsel shall have been authorized in writing by
the Fund or the Investment Manager, as the case may be, in connection
with the defense of such Proceeding or the Fund or the Investment
Manager shall not have, within a reasonable period of time in light of
the circumstances, employed counsel to have charge of the defense of
such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or
them, which are different from, additional to or in conflict with
those available to the Fund or the Investment Manager (in which case
the Fund or the Investment Manager shall not have the right to direct
the defense of such Proceeding on behalf of the indemnified party or
parties), in any of which events such reasonable fees and expenses
shall be borne by the Fund or the Investment Manager and paid as
incurred (it being understood, however, that the Fund or the
Investment Manager shall not be liable for the expenses of more than
one separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such
Proceeding). Neither the Fund or the Investment Manager shall be
liable for any settlement of any Proceeding effected without its
written consent but if settled with the written consent of the Fund,
the Investment Manager or the Subadvisor, the Fund or the Investment
Manager, as the case may be, agrees to indemnify and hold harmless any
Underwriter
14
and any such person from and against any loss or liability by reason
of such settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for reasonable fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then
the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if
(i) such settlement is entered into more than 60 business days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and
(iii) such indemnified party shall have given the indemnifying party
at least 30 days' prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that
are the subject matter of such Proceeding and does not include an
admission of fault, culpability or a failure to act, by or on behalf
of such indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Fund and the Investment Manager, and each of their
respective shareholders, partners, managers, members, trustees,
directors and officers, and any person who controls the Fund or the
Investment Manager within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, and the successors and assigns
of all of the foregoing persons from and against any loss, damage,
expense, liability or claim (including the reasonable cost of
investigation), which, jointly or severally, the Fund or the
Investment Manager or any such person may incur under the Securities
Act, the Exchange Act, the Investment Company Act, the Advisers Act,
the common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in and in
conformity with information furnished in writing by or on behalf of
such Underwriter to the Fund or the Investment Manager expressly for
use with reference to such Underwriter in the Registration Statement
(or in the Registration Statement as amended by any post-effective
amendment thereof by the Fund) or in a Prospectus, or arises out of or
is based upon any omission or alleged omission to state a material
fact in connection with such information required to be stated in such
Registration Statement or such Prospectus or necessary to make such
information not misleading (with respect to the Prospectus, in light
of the circumstances under which they were made).
If any Proceeding is brought against the Fund, the Investment Manager
or any such person in respect of which indemnity may be sought against
any Underwriter pursuant to the foregoing paragraph, the Fund, the
Investment Manager or such person shall promptly notify such
Underwriter in writing of the institution of such Proceeding and such
Underwriter shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses; provided, however, that
the omission to so notify such Underwriter shall not relieve such
Underwriter from any liability which such Underwriter may have to the
Fund, the Investment Manager or any such person or otherwise. The
Fund, the Investment Manager or such person shall have the right to
employ its own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of the Fund, the Investment
Manager or such person, as the case may be, unless the employment of
such counsel shall have been authorized in writing by such Underwriter
in connection with the defense of such Proceeding or such Underwriter
shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of such
Proceeding or such indemnified party or parties shall have reasonably
concluded that there may be defenses
15
available to it or them, which are different from or additional to or
in conflict with those available to such Underwriter (in which case
such Underwriter shall not have the right to direct the defense of
such Proceeding on behalf of the indemnified party or parties, but
such Underwriter may employ counsel and participate in the defense
thereof but the fees and expenses of such counsel shall be at the
expense of such Underwriter), in any of which events such fees and
expenses shall be borne by such Underwriter and paid as incurred (it
being understood, however, that such Underwriter shall not be liable
for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings
in the same jurisdiction representing the indemnified parties who are
parties to such Proceeding). No Underwriter shall be liable for any
settlement of any such Proceeding effected without the written consent
of such Underwriter but if settled with the written consent of such
Underwriter, such Underwriter agrees to indemnify and hold harmless
the Fund, the Investment Manager and any such person from and against
any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
the second sentence of this paragraph, then the indemnifying party
agrees that it shall be liable for any settlement of any Proceeding
effected without its written consent if (i) such settlement is entered
into more than 60 business days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall not
have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least 30 days' prior notice
of its intention to settle. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement
of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
Proceeding and does not include an admission of fault, culpability or
a failure to act, by or on behalf of such indemnified party.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of
this Section 9 in respect of any losses, damages, expenses,
liabilities or claims referred to therein, then each applicable
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, damages, expenses, liabilities or
claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Fund and the Investment Manager on
the one hand and the Underwriters on the other hand from the offering
of the APS 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
Manager on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such
losses, damages, expenses, liabilities or claims, as well as any other
relevant equitable considerations. The relative benefits received by
the Fund and the Investment Manager on the one hand and the
Underwriters on the other shall be deemed to be in the same respective
proportions as the total proceeds from the offering of the APS (net of
underwriting discounts and commissions but before deducting expenses)
received by the Fund and the total underwriting discounts and
commissions received by the Underwriters, bear to the aggregate public
offering price of the APS. The relative fault of the Fund and the
Investment Manager on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether
the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission relates to information supplied by the
Fund or the Investment Manager or by the
16
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to in this
subsection shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with
investigating, preparing to defend or defending any Proceeding.
(d) The Fund, the Investment Manager and the Underwriters agree
that it would not be just and equitable if contribution pursuant to
this Section 9 were determined by pro rata allocation (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 subsection (c) above. Notwithstanding
the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the fees and commissions received
by such Underwriter. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) 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 9 are several in proportion to
their respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this
Section 9 and the covenants, warranties and representations of the
Fund contained in this Agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors or officers or any person
(including each partner, officer or director of such person) who
controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, or by or on behalf
of the Fund or the Investment Manager, its shareholders, partners,
advisers, members, trustees, directors or officers or any person who
controls the Fund or the Investment Manager within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act,
and shall survive any termination of this Agreement or the issuance
and delivery of the APS. The Fund, the Investment Manager and each
Underwriter agree promptly to notify each other of the commencement of
any Proceeding against it and, in the case of the Fund or the
Investment Manager, against any of the Fund's or the Investment
Manager's shareholders, partners, managers, members, trustees,
directors or officers in connection with the issuance and sale of the
APS, or in connection with the Registration Statement or Prospectus.
(f) The Fund and the Investment Manager each acknowledge that the
statements with respect to (1) the public offering of the APS as set
forth on the cover page of and (2) stabilization and selling
concessions and reallowances of selling concessions and payment of
fees to Underwriters that meet certain minimum sales thresholds under
the caption "Underwriting" in, the Prospectus constitute the only
information furnished in writing to the Fund by the Underwriters
expressly for use in such document. The Underwriters severally confirm
that these statements are correct in all material respects and were so
furnished by or on behalf of the Underwriters severally for use in the
Prospectus.
(g) Notwithstanding any other provisions in this Section 9, no
party shall be entitled to indemnification or contribution under this
Underwriting 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. The parties hereto acknowledge
that the foregoing provision shall be applicable solely as to matters
arising under Section 17(i) of the Investment Company Act, and shall
not be construed to impose any duties or obligations upon any such
parties under this Agreement other than as specifically set forth
herein (it being understood that the Underwriters have no duty
hereunder to the Fund to perform any due diligence investigation).
17
10. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Securities LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Syndicate Department, if to the Fund or the Investment Manager, shall be
sufficient in all respects if delivered or sent to the Fund or the Investment
Manager, as the case may be, at the offices of the Fund and the Investment
Manager at ▇▇▇▇▇ & Steers Capital Management, Inc. at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and if to the Subadvisor, at
▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Attention: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
11. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
12. Submission to Jurisdiction. Except as set forth below, no Claim
may be commenced, prosecuted or continued in any court other than the courts of
the State of New York located in the City and County of New York or in the
United States District Court for the Southern District of New York, which courts
shall have jurisdiction over the adjudication of such matters, and the Fund and
UBS Securities each consent to the jurisdiction of such courts and personal
service with respect thereto. The Fund and UBS Securities hereby consent to
personal jurisdiction, service and venue in any court in which any Claim arising
out of or in any way relating to this Agreement is brought by any third party
against UBS Securities LLC or any indemnified party. Each of UBS Securities LLC,
the Fund (on its behalf and, to the extent permitted by applicable law, on
behalf of its stockholders and affiliates), the Investment Manager (on its
behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) and the Subadvisor (on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders and
affiliates), waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement. Each of the Fund, the Investment Manager
and the Subadvisor agrees that a final judgment in any such action, proceeding
or counterclaim brought in any such court shall be conclusive and binding upon
the Fund, the Investment Manager and the Subadvisor, as the case may be, and may
be enforced in any other courts in the jurisdiction of which the Fund, the
Investment Manager and the Subadvisor, as the case may be, is or may be subject,
by suit upon such judgment.
13. Parties at Interest. The Agreement herein set forth has been and
is made solely for the benefit of the Underwriters, the Fund, the Investment
Manager and the Subadvisor and to the extent provided in Section 9 hereof the
controlling persons, shareholders, partners, members, trustees, managers,
directors and officers referred to in such section, and their respective
successors, assigns, heirs, personal representatives and executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
14. Counterparts. This Agreement may be signed by the parties in one
or more counterparts which together shall constitute one and the same agreement
among the parties.
15. Successors and Assigns. This Agreement shall be binding upon the
Underwriters, the Fund, the Investment Manager, the Subadvisor, and any
successor or assign of any substantial portion of the Fund's, the Investment
Manager's, the Subadvisor's, or any of the Underwriters' respective businesses
and/or assets.
18
If the foregoing correctly sets forth the understanding among the
Fund, the Investment Manager, the Subadvisor and the Underwriters, please so
indicate in the space provided below, whereupon this letter and your acceptance
shall constitute a binding agreement among the Fund, the Investment Manager, the
Subadvisor and the Underwriters, severally.
Very truly yours,
▇▇▇▇▇ & STEERS WORLDWIDE REALTY INCOME
FUND, INC.
----------------------------------------
By:
Title:
▇▇▇▇▇ & STEERS CAPITAL MANAGEMENT, INC.
By:
------------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇ ROVERS S.A.
By:
------------------------------------
Name: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
By:
------------------------------------
Name: Gerios J. Rovers
Title: Director
19
Accepted and agreed to as of the date first above written, on behalf of
themselves and the other several Underwriters named in Schedule A
UBS SECURITIES LLC
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
DEUTSCHE BANK SECURITIES INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
By: UBS SECURITIES LLC
---------------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
---------------------------------------
By: ▇▇▇▇ ▇. Reit
Title: Managing Director
20
SCHEDULE A
Number of Number of
Series [ ] APS to Series [ ] APS to
Underwriters be Purchased be Purchased
-------------------------------------------------- ----------------- -----------------
UBS Securities LLC
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Deutsche Bank Securities Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated
Total
Schedule A-1
SCHEDULE B
FORM OF OPINION OF FUND'S COUNSEL
1. The Fund (A) has been duly incorporated and is validly existing and
in good standing as a corporation under the law of the State of Maryland, with
full corporate power and authority to conduct its business as described in the
Registration Statement and the Prospectus and to enter into and perform its
obligations under the Underwriting Agreement, and (B) is duly registered and
qualified to conduct its business and is in good standing in the State of New
York (which is the only jurisdiction identified by management of the Fund to us
in which the Fund owns or leases property or operates or conducts its business);
2. The statements made in the Prospectus under the caption
"Description of APS", "The Auction" and "Description of Common Shares", insofar
as they purport to constitute summaries of the terms of the Fund's preferred
stock and common stock, constitute accurate summaries of the terms of such
preferred stock and common stock in all material respects;
3. All outstanding shares of capital stock of the Fund have been duly
authorized and validly issued by the Fund, and are fully paid and nonassessable;
4. The APS have been duly authorized and, when issued and delivered to
the Underwriters against payment therefor in accordance with the terms of the
Underwriting Agreement, will be validly issued by the Fund, fully paid and
nonassessable. There are no preemptive rights under federal or New York State
law or under the Maryland General Corporation Law to subscribe for or purchase
shares of the Fund's capital stock. There are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the issuance, voting or
transfer of, any shares of the Fund's capital stock pursuant to the Fund's
charter or by-laws or any agreement or other instrument filed or incorporated by
reference as an exhibit to the Registration Statement;
5. The form of the certificate for the APS conforms to the
requirements of the Maryland General Corporation Law and the NYSE;
6. The Registration Statement and all post-effective amendments, have
become effective under the Securities Act and, to our
knowledge, 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 have been instituted or
threatened by the Commission; and any required filing of the Prospectus pursuant
to Rule 497 of the Securities Act Rules and Regulations has been made in
accordance with Rule 497;
7. (A) The Underwriting Agreement and each of the Investment
Management Agreement dated as of February 22, 2005 between the Fund and the
Investment Manager (the "Investment Management Agreement"), the Administration
Agreement between the Fund and the Investment Manager dated as of February 22,
2005 (the "Administration Agreement"), the Master Custodian Agreement among
various investment companies advised by the Investment Manager and State Street
Bank and Trust Company dated as of March 9, 2001 and effective with respect to
the Fund pursuant to a letter agreement dated as of February 18, 2005 (the
"Custodian Agreement"), the Administration Agreement among various investment
companies advised by the Investment Manager and State Street Bank and Trust
Company dated as of March 12, 2001 and effective with respect to Fund pursuant
to a letter agreement dated as of February 18, 2005 (the "Sub-Administration
Agreement"), the Stock Transfer Agency Agreement between the Fund and The Bank
of New York dated as of March 10,
Schedule B-1
2005 (the "Transfer Agent Agreement"), the Auction Agency Agreement between the
Fund and The Bank of New York dated as of [_______], 2005 (the "Auction Agency
Agreement") and the Letter of Representations between the Fund and the
Depository Trust Company dated as of [_______], 2005 (the "DTC Notice";
collectively with the Investment Management Agreement, Administration Agreement,
Custodian Agreement, Sub-Administration Agreement, Transfer Agent Agreement and
Auction Agency Agreement, the "Fund Agreements") have each been duly authorized,
executed and delivered by the Fund and (B) the Investment Management Agreement,
assuming that the Investment Management Agreement is the valid and legally
binding obligations of the other parties thereto, is a valid and legally binding
agreement of the Fund, enforceable against the Fund in accordance with its
terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, (ii) general equitable principles
(whether considered in a proceeding in equity or at law) and (iii) an implied
covenant of good faith and fair dealing and except as the enforceability thereof
may be limited by considerations of public policy;
8. The issue and sale of the APS by the Fund and the compliance by the
Fund with the provisions of the Underwriting Agreement and the Fund Agreements
will not breach or result in a default under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Fund pursuant to any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument filed or incorporated by reference as an exhibit to the
Registration Statement, nor will such action violate the charter or by-laws of
the Fund or any federal or New York State statute or any rule or regulation
thereunder or the Maryland General Corporation Law or any order known to us that
has been issued pursuant to any federal or New York State statute or the
Maryland General Corporation Law by any New York State or Maryland court or
governmental agency or body having jurisdiction over the Fund or any of its
properties;
9. No consent, approval, authorization, order, registration, filing or
qualification of or with any federal or New York State governmental agency or
body or any Maryland governmental agency or body acting pursuant to the Maryland
General Corporation Law or, to our knowledge, any federal or New York State
court or any Maryland court acting pursuant to the Maryland General Corporation
Law is required for the issuance and sale of the APS by the Fund and the
compliance by the Fund with all of the provisions of the Underwriting Agreement
and the Fund Agreements, except for the registration with the Commission under
the Investment Company Act of the Fund as an investment company which has
occurred and the registration of the APS under the Securities Act and under the
Investment Company Act pursuant to the Registration Statement and under the
Securities Exchange Act of 1934, as amended, pursuant to the Fund's Registration
Statement on Form 8-A, both of which have been filed and have become effective,
and such consents, approvals, authorizations, registrations, filings or
qualifications as have been made or as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the APS by the
Underwriters;
10. To our knowledge, (A) other than as described or contemplated in
the Registration Statement or Prospectus, there are no legal or governmental
proceedings pending or threatened against the Fund, or to which the Fund or any
of its properties is subject and (B) there are no agreements, contracts,
indentures, leases or other instruments, which are required to be described in
the Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that are not described or filed as required, as the case
may be;
11. The statements made in the Prospectus under the caption
"Management of the Fund," "Description of APS", "The Auction" and "Description
of Common Shares," insofar as they purport to constitute summaries of contracts
and other documents, constitute accurate summaries of the terms of such
contracts and other documents in all material respects;
Schedule B-2
12. The statements made in the Prospectus under the caption "Taxation"
insofar as they purport to constitute summaries of matters of United States
federal tax law and regulations or legal conclusions with respect thereto,
constitute accurate summaries of the matters described therein in all material
respects;
13. The statements made in Part C of the Registration Statement under
Item 29 (Indemnification), insofar as they purport to constitute summaries of
the terms of the Maryland General Corporation Law or any federal statutes, rules
and regulations thereunder or contracts and other documents, constitute accurate
summaries of the terms of such statutes, rules and regulations or contracts and
other documents in all material respects;
14. Each of the Fund Agreements complies as to form with all
applicable provisions of the Investment Company Act, the Investment Advisers Act
of 1940, as amended (the "Advisers Act") and the rules and regulations under the
Investment Company Act and the Adviser's Act;
15. The Fund is duly registered with the Commission under the
Investment Company Act and the rules and regulations under the Investment
Company Act (the "Investment Company Act Rules and Regulations") as a
closed-end, non-diversified management investment company and, to our knowledge,
no order of suspension or revocation of such registration under the Investment
Company Act and the Investment Company Act Rules and Regulations has been issued
or proceedings therefor initiated or threatened by the Commission; the
provisions of the charter and by-laws do not violate the provisions of the
Investment Company Act or the Investment Company Act Rules and Regulations; and
the investment policies and restrictions described in the Registration Statement
and the Prospectus under the captions "Investment objectives and policies",
"Principal risks of the Fund", "Additional risk considerations" and "Investment
Restrictions" (in the Prospectus and the statement of additional information
incorporated by reference therein) comply in all material respects with the
requirements of the Investment Company Act and the applicable Investment Company
Act Rules and Regulations; and
16. To our knowledge, except as described in the Prospectus, there are
no outstanding options, warrants or other rights calling for the issuance of,
and we do not know of any commitment, plan or arrangement to issue (other than
in connection with the reinvestment of dividends) any shares of capital stock of
the Fund or any security convertible into or exchangeable or exercisable for
shares of capital stock of the Fund or to otherwise register such securities for
sale.
Insofar as the opinions expressed herein relate to or are dependent
upon matters governed by the law of the State of Maryland, we have relied upon
the opinion of ▇▇▇▇▇▇▇ LLP.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement or the
Prospectus and take no responsibility therefor, except as and to the extent set
forth in paragraphs 2, 11, 12 and 13 above. In the course of the preparation by
the Fund of the Registration Statement and the Prospectus, we participated in
conferences with certain officers and employees of the Fund, the Investment
Manager, representatives of PricewaterhouseCoopers LLP, counsel to the
Investment Manager and your representatives and counsel. Based upon our review
of the Registration Statement and the Prospectus, our investigations made in
connection with the preparation of the Registration Statement and the Prospectus
and our participation in the conferences referred to above, (i) we advise you
that the Registration Statement, as of its effective date, the Prospectus, as of
its date, appeared, on its face, to be appropriately responsive, in all material
respects, to the requirements of the Securities Act and the Investment Company
Act and the applicable rules and regulations of the Commission thereunder,
except that in each case we express no opinion with respect to the financial
statements or other financial data contained in the Registration Statement or
the Prospectus, and (ii) nothing has come to our attention that causes us to
believe that the Registration Statement, at the time the Registration Statement
became effective, contained any untrue statement of a
Schedule B-3
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading or
that the Prospectus as of its date or as of the closing date contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
that in each case we express no belief with respect to the financial statements
or other financial data contained or omitted from the Registration Statement or
the Prospectus.
Schedule B-4
SCHEDULE C
FORM OF OPINION OF INTERNAL COUNSEL
REGARDING ▇▇▇▇▇ & STEERS CAPITAL MANAGEMENT, INC.
1. The Investment Manager (A) has been duly incorporated and is
validly existing as a corporation under the laws of the State of New York with
full corporate power and authority to conduct its business as described in the
Registration Statement and the Prospectus and (B) is duly registered and
qualified to conduct its business and is in good standing in the State of New
York (which is the only jurisdiction in which the Investment Manager owns or
leases property or operates or conducts its business);
2. Each of the Investment Manager and the Subadvisor 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 rules and regulations under the Advisers Act (the
"Advisers Act Rules and Regulations"), the Investment Company Act, or the rules
and regulations under the Investment Company Act from acting under the
Investment Management Agreement dated as of February 22, 2005 between the Fund
and the Investment Manager (the "Investment Management Agreement"), and the
Administration Agreement dated as of February 22, 2005 between the Fund and the
Investment Manager (the "Administration Agreement") as contemplated by the
Prospectus; and to my knowledge, no order of suspension or revocation of such
registration under the Advisers Act and the Advisers Act Rules and Regulations
has been issued and no proceedings for that purpose are pending before or
threatened by the Commission;
3. Each of this Agreement, the Investment Management Agreement, and
the Administration Agreement has been duly authorized, executed and delivered by
the Investment Manager and assuming that each is the valid and legally binding
agreement of the other parties thereto, each is a valid and legally binding
agreement of the Investment Manager, enforceable against the Investment Manager
in accordance with its terms subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing;
4. Neither the execution, delivery or performance of the Underwriting
Agreement, the Investment Management Agreement, the Sub-Advisory Agreement or
the Administration Agreement by the Investment Manager, or compliance by the
Investment Manager with the provisions of the Underwriting Agreement, the
Investment Management Agreement, the Sub-Advisory Agreement or the
Administration Agreement, nor consummation by the Investment Manager of the
transactions contemplated hereby and thereby will breach or result in a default
under or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Investment Manager pursuant to any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Investment Manager is a party or by which its properties are bound
except where breach or default would not reasonably be expected to have a
material adverse effect on the ability of the Investment Manager to perform its
obligations under the Underwriting Agreement, the Investment Management
Agreement, the Sub-Advisory Agreement or the Administration Agreement, nor will
such action violate the charter or by-laws of the Investment Manager or any
federal or New York statute or any rules or regulations thereunder or order
known to me issued pursuant to any federal or New York statute by any court or
governmental agency or body having jurisdiction over the Investment Manager or
any of its properties;
Schedule C-1
5. Neither the execution, delivery or performance of the Underwriting
Agreement or the Sub-Advisory Agreement by the Subadvisor, or compliance by the
Subadvisor with the provisions of the Underwriting Agreement or the Sub-Advisory
Agreement, nor consummation by the Subadvisor of the transactions contemplated
hereby, will violate the charter or by-laws of the Subadvisor or any federal or
New York statute or any rules or regulations thereunder or order known to me
issued pursuant to any federal or New York statute by any court or governmental
agency or body having jurisdiction over the Subadvisor or any of its properties;
6. No consent, approval, authorization, order, registration, filing or
qualification of or with any federal or New York governmental agency or body or,
to my knowledge, any federal or New York court is required on the part of the
Investment Manager and the Subadvisor for the execution, delivery and
performance by the Investment Manager and the Subadvisor of the Underwriting
Agreement, the Investment Management Agreement, the Sub-Advisory Agreement or
the Administration Agreement, except such consents, approvals, authorizations,
orders, registrations, filings or qualifications as have been obtained or made
prior to the date hereof;
7. To the best of my knowledge, no person is serving as an officer,
director or investment manager of the Fund except in accordance with the
Investment Company Act and the Rules and Regulations and the Advisers Act and
the Advisers Act Rules and Regulations. Except as disclosed in the Registration
Statement and Prospectus (or any amendment or supplement to either of them), to
the best of my knowledge, no director of the Fund is an "interested person" (as
defined in the Investment Company Act) of the Fund or an "affiliated person" (as
defined in the Investment Company Act) of an Underwriter listed on Schedule A to
the Underwriting Agreement; and
8. To my knowledge, there are no legal or governmental proceedings
pending or threatened against the Investment Manager, or to which the Investment
Manager or any of its properties is subject, which are required to be described
in the Registration Statement or Prospectus that are not described as required
or which may reasonably be expected to involve a prospective material adverse
change in the ability of the Investment Manager to perform its obligations under
the Underwriting Agreement, the Investment Management Agreement or the
Administration Agreement.
I have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement or the
Prospectus and take no responsibility therefor. In the course of the preparation
by the Fund of the Registration Statement and the Prospectus, I participated in
conferences with certain officers and employees of the Fund and the Investment
Manager, with representatives of PricewaterhouseCoopers LLP and with counsel to
the Fund. Based upon my examination of the Registration Statement and the
Prospectus, my investigations made in connection with the preparation of the
Registration Statement and the Prospectus and my participation in the
conferences referred to above, I have no reason to believe that the Registration
Statement, at the time the 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 in order to make the statements therein not
misleading or that the Prospectus as of _______, 2005 contained, or as of the
date hereof contains, any untrue statement of material fact or as of _______,
2005 omitted or as of the date hereof omits, to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except I express no
belief with respect to the financial statements or other financial data
contained or incorporated by reference in the Registration Statement or the
Prospectus.
Schedule C-2
SCHEDULE D
FORM OF OPINION OF BELGIUM COUNSEL
TO ▇▇▇▇▇▇▇▇ ROVERS S.A.
(i) The Subadvisor has been duly organized and is validly existing as a
limited liability company in good standing under the laws of Belgium.
(ii) The Subadvisor has full power and authority to own, lease and operate
its properties and to conduct its business as described in pages ___ of the
Prospectus and pages ___ of the Statement of Additional Information to enter
into and perform its obligations under the Underwriting Agreement and to enter
into and perform its obligations under the Sub-Advisory Agreement.
(iii) The Subadvisor is duly qualified in the Kingdom of Belgium and
through EU notification of the free provision of services in Denmark, Ireland,
Italy, Luxembourg, Netherlands and Germany to transact business and is in good
standing in each other European jurisdiction in which it conducts business and
where such qualification is required.
(iv) The Underwriting Agreement and the Sub-Advisory Agreement have been
duly authorized and executed by the Subadvisor.
(v) To our knowledge, there is not pending or threatened any action, suit,
proceeding, inquiry or investigation, to which the Subadvisor is a party, or to
which the property of the Subadvisor is subject, before or brought by any
Belgium court or governmental agency or body, which might reasonably be expected
to result in any material adverse change in the condition, financial or
otherwise, in the earnings, business affairs or business prospects of the
Subadvisor, materially and adversely affect the properties or assets of the
Subadvisor or materially impair or adversely affect the ability of the
Subadvisor to function as an investment adviser or perform its obligations under
the Sub-Advisory Agreement.
(vi) To our knowledge, there are no franchises, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be filed as
exhibits thereto other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the descriptions thereof or
references thereto are correct in all material respects.
(vii) The Subadvisor is not in violation of its organizational documents
and no default by the Subadvisor exists in the due performance or observance of
any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Subadvisor is a party.
(viii) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency of the Kingdom of Belgium is necessary or required in connection with the
due authorization, execution and delivery of the Underwriting Agreement and the
Sub-Advisory Agreement other than those that have been obtained.
(ix) The execution, delivery and performance of the Underwriting Agreement
and the Sub-Advisory Agreement and the consummation of the transactions
contemplated in the Underwriting Agreement, the Sub-Advisory Agreement and in
the Registration Statement and compliance by the Subadvisor with its obligations
under the Underwriting Agreement and the Sub-Advisory Agreement do not and will
not, whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default under or result in the
Schedule D-1
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Subadvisor pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to us, to which the Subadvisor is a party or by which it may
be bound, or to which any of the property or assets of the Subadvisor is subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect on the Subadvisor),
nor will such action result in any violation of the provisions of the Articles
of Incorporation of the Subadvisor, or any applicable Belgium law, statute,
rule, regulation, judgment, order or decree.
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 on the
basis of such participation and review, nothing has come to our attention that
would lead us to believe that the sections entitled "Prospectus
Summary--Investment Objectives and Policies" (to the extent that it covers a
description of the Subadvisor, the Sub-Advisory Agreement and the Subadvisor's
duties), "Prospectus Summary--Investment Manager and Subadvisor," "Management of
the Fund--Subadvisor" and "Management of the Fund--Sub-Advisory Agreement" in
the Prospectus and "Management of the Fund--Board's Role in Fund
Governance--Approval of the Investment Management Agreement and Sub-Advisory
Agreement" and "Investment Advisory and Other Services--The Subadvisor" in the
Statement of Additional Information, at the time the 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 at the time the Prospectus was issued, or
at the Closing Time, included or includes an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
Schedule D-2
SCHEDULE E
FORM OF INDEPENDENT REGISTERED
PUBLIC ACCOUNTING FIRM'S COMFORT LETTER
[To be agreed]
Schedule E-1