_________ Shares
NUVEEN MASSACHUSETTS DIVIDEND ADVANTAGE MUNICIPAL FUND
Common Stock
UNDERWRITING AGREEMENT
----------------------
January __, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Nuveen Investments
Deutsche Banc Alex. ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
Prudential Securities Incorporated
UBS Warburg LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
As Representatives of the Several Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
The undersigned, Nuveen Massachusetts Dividend Advantage Municipal Fund, a
Massachusetts business trust (the "Fund") and Nuveen Advisory Corp., a Delaware
corporation (the "Manager"), address you as Underwriters and as the
representatives (the "Representatives") of each of the other persons, firms and
corporations, if any, listed in Schedule I hereto (herein collectively called
"Underwriters"). The Fund proposes to issue and sell an aggregate of
[____________] shares (the "Firm Shares") of its common shares of beneficial
interest, $.01 par value per share (the "Common Shares"), to the several
Underwriters. The Fund also proposes to sell to the Underwriters, upon the
terms and conditions set forth in Section 2 hereof, up to an additional
[____________] Common Shares (the "Additional Shares"). The Firm Shares and
Additional Shares are hereinafter collectively referred to as the "Shares".
The Fund and the Manager wish to confirm as follows their agreements with
you and the other several Underwriters on whose behalf you are acting in
connection with the several purchases of the Shares by the Underwriters.
The Fund is entering into an investment management agreement with the
Manager dated December 14, 2000, an exchange traded fund custody agreement with
The Chase Manhattan Bank dated [______], 2001 and a shareholder transfer agency
agreement with The Chase Manhattan Bank dated [______], 2001 and such agreements
are herein referred to as the "Management Agreement", the "Custodian Agreement"
and the "Transfer Agency Agreement",
respectively. Collectively, the Management Agreement, the Custodian Agreement
and the Transfer Agency Agreement are herein referred to as the "Fund
Agreements". This Underwriting Agreement is herein referred to as the
"Agreement".
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1. Registration Statement and Prospectus. The Fund has prepared and
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filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended (the
"1933 Act"), the Investment Company Act of 1940, as amended (the "1940 Act") and
the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Rules and Regulations") and the 1940 Act (the "1940 Act Rules and Regulations"
and together with the 1933 Act Rules and Regulations, the "Rules and
Regulations") a registration statement on Form N-2 (File No. 333-49294) under
the 1933 Act and the 1940 Act and may pursuant to the Rules and Regulations
prepare and file an additional registration statement relating to a portion of
the Shares pursuant to Rule 462(b) of the 1933 Act Rules and Regulations
(collectively, the "registration statement"), including a prospectus (including
any statement of additional information) relating to the Shares and a
notification of registration of the Fund as an investment company under the 1940
Act on Form N-8A (the "1940 Act Notification"). The term "Registration
Statement" as used in this Agreement means the registration statement (including
all financial schedules and exhibits), as amended at the time it becomes
effective under the 1933 Act or, if the registration statement became effective
under the 1933 Act prior to the execution of this Agreement, as amended or
supplemented thereto, prior to the execution of this Agreement and includes any
information deemed to be included by Rule 430A under the 1933 Act Rules and
Regulations. If it is contemplated, at the time this Agreement is executed, that
a post-effective amendment to the registration statement will be filed under the
1933 Act and must be declared effective before the offering of the Shares may
commence, the term "Registration Statement" as used in this Agreement means the
registration statement as amended by said post-effective amendment. The term
"Prospectus" as used in this Agreement means the prospectus (including the
statement of additional information) in the form included in the Registration
Statement or, if the prospectus (including the statement of additional
information) included in the Registration Statement omits information in
reliance on Rule 430A and such information is included in a prospectus
(including the statement of additional information) filed with the Commission
pursuant to Rule 497(h) under the 1933 Act Rules and Regulations, the term
"Prospectus" as used in this Agreement means the prospectus (including the
statement of additional information) in the form included in the Registration
Statement as supplemented by the addition of the information contained in the
prospectus (including the statement of additional information) filed with the
Commission pursuant to Rule 497(h). The term "Prepricing Prospectus" as used in
this Agreement means the prospectus (including the statement of additional
information) subject to completion in the form included in the registration
statement at the time of the initial filing of the registration statement with
the Commission and as such prospectus (including the statement of additional
information) shall have been amended from time to time prior to the date of the
Prospectus, together with any other prospectus (including any other statement of
additional information) relating to the Fund other than the Prospectus.
The Fund has furnished the Representatives with copies of such registration
statement, each amendment to such registration statement filed with the
Commission and each Prepricing Prospectus.
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2. Agreements to Sell, Purchase and Compensate. The Fund hereby agrees,
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subject to all the terms and conditions set forth herein, to issue and to sell
to each Underwriter and, upon the basis of the representations, warranties and
agreements of the Fund and the Manager herein contained and subject to all of
the other terms and conditions set forth herein, each Underwriter agrees,
severally and not jointly, to purchase from the Fund at a purchase price per
share of $14.325 per Share (the "purchase price per share"), the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto (or
such number of Firm Shares increased as set forth in Section 10 hereof).
The Fund also agrees, subject to all the terms and conditions set forth
herein, to issue and to sell to the Underwriters and, upon the basis of the
representations, warranties and agreements of the Fund and the Manager herein
contained and subject to all the terms and conditions set forth herein, the
Underwriters shall have the right to purchase from the Fund, at the purchase
price per share, pursuant to an option (the "over-allotment option") which may
be exercised at any time and from time to time prior to 9:00 P.M., New York City
time, on the 45th day after the date of the Prospectus (or if such 45th day
shall be a Saturday or a Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange (the "NYSE") is open for trading) up
to an aggregate of [___________] Additional Shares. Additional Shares may be
purchased solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. Upon any exercise of the over-allotment
option, upon the basis of the representations, warranties and agreements of the
Fund and the Manager herein contained and subject to all of the other terms and
conditions set forth herein, each Underwriter agrees, severally and not jointly,
to purchase from the Fund the number of Additional Shares (subject to such
adjustments as you may determine to avoid fractional shares) which bears the
same proportion to the number of Additional Shares to be purchased by the
Underwriters as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I (or such number of Firm Shares increased as set forth
in Section 10 hereof) bears to the aggregate number of Firm Shares.
3. Terms of Public Offering. The Fund and the Manager have been advised
-----------------------------
by you that the Underwriters propose to make a public offering of their
respective portions of the Firm Shares as soon after the Registration Statement
and this Agreement have become effective as in your judgment is advisable and
initially to offer the Firm Shares upon the terms set forth in the Prospectus.
4. Delivery of Shares and Payments Therefor.
---------------------------------------------
(a) Delivery to the Underwriters of and payment to the Fund for the
Firm Shares and compensation of the Underwriters with respect thereto shall
be made at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or through the facilities of the Depository Trust
Company or another mutually agreeable facility, at 9:00 A.M., New York City
time, on January 26, 2001 (the "Closing Date"). The place of closing for
the Firm Shares and the Closing Date may be varied by agreement between you
and the Fund.
4
(b) Delivery to the Underwriters of and payment to the Fund for any
Additional Shares to be purchased by the Underwriters and compensation of
the Underwriters with respect thereto shall be made at the aforementioned
office of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. at such time on such date (an "Option
Closing Date"), which may be the same as the Closing Date, but shall in no
event be earlier than the Closing Date nor earlier than two nor later than
three business days after the giving of the notice hereinafter referred to,
as shall be specified in a written notice from you on behalf of the
Underwriters to the Fund of the Underwriters' determination to purchase a
number, specified in said notice, of Additional Shares. The place of
closing for any Additional Shares and the Option Closing Date for such
Additional Shares may be varied by agreement between you and the Fund.
(c) Certificates for the Firm Shares and for any Additional Shares
shall be registered in such names and in such denominations as you shall
request prior to 1:00 P.M., New York City time, (i) in respect of the Firm
Shares, on the second business day preceding the Closing Date and (ii) in
respect of Additional Shares, on the day of the giving of the written
notice in respect of such Additional Shares. Such certificates will be made
available to you in New York City for inspection and packaging not later
than 9:00 A.M., New York City time, on the business day next preceding the
Closing Date or any Option Closing Date, as the case may be. The
certificates evidencing the Firm Shares and any Additional Shares to be
purchased hereunder shall be delivered to you on the Closing Date or the
Option Closing Date, as the case may be, against payment of the purchase
price therefor in same-day funds to the order of the Fund.
5. Agreements of the Fund and the Manager. The Fund and the Manager,
-------------------------------------------
jointly and severally, agree with the several Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective under the 1933 Act before the offering of
the Firm Shares may commence, the Fund will use its reasonable best efforts
to cause the Registration Statement or such post-effective amendment to
become effective under the 1933 Act as soon as possible. If the
Registration Statement has become effective and the Prospectus contained
therein omits certain information at the time of effectiveness pursuant to
Rule 430A of the 1933 Act Rules and Regulations, the Fund will file a
prospectus including such information pursuant to Rule 497(h) of the 1933
Act Rules and Regulations, as promptly as practicable, but no later than
the second business day following the earlier of the date of the
determination of the offering price of the Shares or the date the
Prospectus is first used after the effective date of the Registration
Statement. 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 (c) or (j) of the 1933 Act
Rules and Regulations as promptly as practicable, but no later than the
fifth business day following the date of the later of the effective date of
the Registration Statement or the commencement of the public offering of
the Shares after the effective date of the Registration Statement. The Fund
will advise you promptly and, if requested by you, will
5
confirm such advice in writing (i) when the Registration Statement or such
post-effective amendment has become effective, (ii) when the Prospectus has
been timely filed pursuant to Rule 497(c) or Rule 497(h) of the 1933 Act
Rules and Regulations or the certification permitted pursuant to Rule
497(j) of the 1933 Act Rules and Regulations has been timely filed,
whichever is applicable.
(b) The Fund will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of any request made by the
Commission for amendment of or a supplement to the Registration Statement,
the Prospectus or any Prepricing Prospectus or the Prospectus (or any
amendment or supplement to any of the foregoing) or for additional
information, (ii) of the issuance by the Commission, the National
Association of Securities Dealers, Inc. (the "NASD"), any state securities
commission, any national securities exchange, any arbitrator, any court or
any other governmental, regulatory, self-regulatory or administrative
agency or any official suspending the effectiveness of the Registration
Statement, prohibiting or suspending the use of the Prospectus, any
Prepricing Prospectus or any sales material (as hereinafter defined), of
any notice pursuant to Section 8(e) of the 1940 Act, of the suspension of
qualification of the Shares for offering or sale in any jurisdiction, or
the initiation or contemplated initiation of any proceeding for any such
purposes, (iii) of receipt by the Fund, the Manager, any affiliate of the
Fund or the Manager or any representative or attorney of the Fund or the
Manager of any other material communication from the Commission, the NASD,
any state securities commission, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory, self-
regulatory or administrative agency or any official relating to the Fund
(if such communication relating to the Fund is received by such person
within three years after the date of this Agreement), the Registration
Statement, the 1940 Act Notification, the Prospectus, any Prepricing
Prospectus, any sales material (as hereinafter defined) (or any amendment
or supplement to any of the foregoing), this Agreement or any of the Fund
Agreements and (iv) within the period of time referred to in paragraph (f)
below, of any material, adverse change in the condition (financial or
other), business, prospects, properties, net assets or results of
operations of the Fund or the Manager or of the happening of any event
which makes any statement of a material fact made in the Registration
Statement, the Prospectus, any Prepricing Prospectus or any sales material
(as herein defined) (or any amendment or supplement to any of the
foregoing) untrue or which requires the making of any additions to or
changes in the Registration Statement, the Prospectus, any Prepricing
Prospectus or any sales materials (as herein defined) (or any amendment or
supplement to any of the foregoing) in order to state a material fact
required by the 1933 Act, the 1940 Act or the Rules and Regulations to be
stated therein or necessary in order to make the statements therein (in the
case of a prospectus, in light of the circumstances under which they were
made) not misleading or of the necessity to amend or supplement the
Registration Statement, the Prospectus, any Prepricing Prospectus or any
sales material (as herein defined) (or any amendment or supplement to any
of the foregoing) to comply with the 1933 Act, the 1940 Act, the Rules and
Regulations or any other law or order of any court or regulatory body. If
at any time the Commission, the NASD, any state securities commission, any
national securities
6
exchange, any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official shall issue any
order suspending the effectiveness of the Registration Statement,
prohibiting or suspending the use of the Prospectus, any Prepricing
Prospectus or any sales material (as hereinafter defined) (or any amendment
or supplement to any of the foregoing) or suspending the qualification of
the Shares for offering or sale in any jurisdiction, the Fund will use its
reasonable best efforts to obtain the withdrawal of such order at the
earliest possible time.
(c) The Fund will furnish to you, without charge, three signed
copies of the registration statement and the 1940 Act Notification as
originally filed with the Commission and of each amendment thereto,
including financial statements and all exhibits thereto (except any post-
effective amendment required by Rule 8b-16 of the 1940 Act Rules and
Regulations which is filed with the Commission after the later of (x) one
year from the date of this Agreement and (y) the date on which the
distribution of the Shares is completed) and will also furnish to you,
without charge, such number of conformed copies of the registration
statement as originally filed and of each amendment thereto (except any
post-effective amendment required by Rule 8b-16 of the 1940 Act Rules and
Regulations which is filed with the Commission after the later of (x) one
year from the date of this Agreement and (y) the date on which the
distribution of the Shares is completed), with or without exhibits, as you
may reasonably request.
(d) The Fund will not (i) file any amendment to the registration
statement or make any amendment or supplement to the Prospectus, any
Prepricing Prospectus or any sales material (as hereinafter defined) (or
any amendment or supplement to any of the foregoing) of which you shall not
previously have been advised or to which you shall reasonably object within
a reasonable time after being so advised or (ii) so long as, in the opinion
of counsel for the Underwriters, a Prospectus is required to be delivered
in connection with sales by any Underwriter or dealer, file any
information, documents or reports pursuant to the Securities Exchange Act
of 1934, as amended (the "1934 Act"), without delivering a copy of such
information, documents or reports to you, as Representatives of the
Underwriters, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the Fund
has delivered to you, without charge, in such quantities as you have
reasonably requested, copies of each form of any Prepricing Prospectus. The
Fund consents to the use, in accordance with the provisions of the 1933 Act
and with the securities or Blue Sky laws of the jurisdictions in which the
Shares are offered by the several Underwriters and by dealers, prior to the
date of the Prospectus, of each Prepricing Prospectus so furnished by the
Fund.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time, for such period as in the
opinion of counsel for the Underwriters a prospectus is required by the
1933 Act to be delivered in connection with sales of Shares by any
Underwriter or dealer, the Fund will expeditiously deliver to each
7
Underwriter and each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as you may
reasonably request. The Fund consents to the use of the Prospectus (and of
any amendments or supplements thereto) in accordance with the provisions of
the 1933 Act and with the securities or Blue Sky laws of the jurisdictions
in which the Shares are offered by the several Underwriters and by all
dealers to whom Shares may be sold, both in connection with the offering or
sale of the Shares and for such period of time thereafter as the Prospectus
is required by law to be delivered in connection with sales of Shares by
any Underwriter or dealer. If during such period of time any event shall
occur that in the judgment of the Fund or in the opinion of counsel for the
Underwriters is required to be set forth in the Prospectus (as then amended
or supplemented) or should be set forth therein in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading or if it is necessary to supplement or amend the
Prospectus to comply with the 1933 Act, the 1940 Act, the Rules and
Regulations or any other law, rule or regulation, the Fund will forthwith
prepare and, subject to the provisions of paragraph (d) above, file with
the Commission an appropriate amendment or supplement thereto and will
expeditiously furnish to the Underwriters and dealers, without charge, such
number of copies thereof as they shall reasonably request. In the event
that the Prospectus is to be amended or supplemented, the Fund, if
requested by you, will promptly issue a press release announcing or
disclosing the matters to be covered by the proposed amendment or
supplement.
(g) The Fund will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers
under the securities or Blue Sky laws of such jurisdictions as you may
designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall the Fund be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action which would subject it to service of process in
suits, other than those arising out of the offering or sale of the Shares,
in any jurisdiction where it is not now so subject.
(h) The Fund will make generally available to its security holders an
earnings statement, which need not be audited, covering a twelve-month
period commencing after the effective date of the Registration Statement
and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which earnings statement shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act
Rules and Regulations.
(i) The Fund will comply with the undertaking set forth in paragraph 6
of Item 33 of Part C of the Registration Statement.
(j) During the period of five years hereafter, the Fund will furnish
to you (i) as soon as available, a copy of each report of the Fund mailed
to shareholders or filed with
8
the Commission and (ii) from time to time such other information concerning
the Fund as you may reasonably request.
(k) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 hereof or by notice given by you terminating
this Agreement pursuant to Section 10 or Section 11 hereof) or if this
Agreement shall be terminated by the Underwriters because of any failure or
refusal on the part of the Fund or the Manager to comply with the terms or
fulfill any of the conditions of this Agreement, the Fund and the Manager,
jointly and severally, agree to reimburse the Representatives for all out-
of-pocket expenses (including fees and expenses of counsel for the
Underwriters) incurred by you in connection herewith, but the Fund and the
Manager shall in no event be liable for any internal cost of the
Underwriters or any loss of anticipated profits or speculative,
consequential or similar damages for such termination.
(l) The Fund will direct the investment of the net proceeds of the
offering of the Shares in such a manner as to comply with the investment
objectives, policies and restrictions of the Fund as described in the
Prospectus.
(m) The Fund will file the requisite copies of the Prospectus with the
Commission in a timely fashion pursuant to Rule 497(c) or Rule 497(h) of
the 1933 Act Rules and Regulations, whichever is applicable or, if
applicable, will file in a timely fashion the certification permitted by
Rule 497(j) of the 1933 Act Rules and Regulations and will advise you of
the time and manner of such filing.
(n) Except as provided in this Agreement or pursuant to any dividend
reinvestment plan of the Fund in effect on the date hereof, the Fund will
not sell, contract to sell or otherwise dispose of, any Common Shares or
any securities convertible into or exercisable or exchangeable for Common
Shares or grant any options or warrants to purchase Common Shares, for a
period of 180 days after the date of the Prospectus, without the prior
written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
(o) Except as stated in this Agreement and in the Prospectus, neither
the Fund nor the Manager has taken, nor will it take, directly or
indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Shares.
(p) The Fund will use its reasonable best efforts to have the Common
Shares listed, subject to notice of issuance, on the American Stock
Exchange (the "AMEX") concurrently with the effectiveness of the
registration statement and to comply with the rules and regulations of such
exchange.
6. Representations and Warranties of the Fund and the Manager. The Fund
--------------------------------------------------------------
and the Manager, jointly and severally, represent and warrant to each
Underwriter that:
9
(a) Each Prepricing Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement
thereto or filed pursuant to Rule 497 of the 1933 Act Rules and
Regulations, complied when so filed in all material respects with the
provisions of the 1933 Act, the 1940 Act and the Rules and Regulations.
(b) The Registration Statement, in the form in which it became or
becomes effective and also in such form as it may be when any post-
effective amendment thereto shall become effective and the Prospectus and
any amendment or supplement thereto when filed with the Commission under
Rule 497 of the 1933 Act Rules and Regulations and the 1940 Act
Notification when originally filed with the Commission and any amendment or
supplement thereto when filed with the Commission complied or will comply
in all material respects with the provisions of the 1933 Act, the 1940 Act
and the Rules and Regulations and did not or will not at any such times
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in light of the circumstances under
which they were made) not misleading; except that this representation and
warranty does not apply to statements in or omissions from the Registration
Statement or the Prospectus (or any amendment or supplement thereto) made
in reliance upon and in conformity with information relating to any
Underwriter furnished to the Fund in writing by or on behalf of any
Underwriter through you expressly for use therein.
(c) All the outstanding Common Shares of the Fund have been duly
authorized and validly issued, are fully paid and, except as described in
the Registration Statement, nonassessable and are free of any preemptive or
similar rights; the Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with
the terms hereof, will be validly issued, fully paid and, except as
described in the Registration Statement, nonassessable and free of any
preemptive or similar rights and the capital stock of the Fund conforms to
the description thereof in the Registration Statement and the Prospectus
(and any amendment or supplement to either of them).
(d) The Fund has been duly formed and is validly existing in good
standing as a business trust under the laws of The Commonwealth of
Massachusetts, with full power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them) and is duly registered and qualified to conduct business and is in
good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify does
not have a material, adverse effect on the condition (financial or other),
business, properties, net assets or results of operations of the Fund. The
Fund has no subsidiaries.
10
(e) There are no legal or governmental proceedings pending or, to the
knowledge of the Fund, threatened, against the Fund or to which the Fund or
any of its properties is subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them) but are not described as required and there are no
agreements, contracts, indentures, leases or other instruments that are
required to be described in the Registration Statement or the Prospectus
(or any amendment or supplement to either of them) or to be filed as an
exhibit to the Registration Statement that are not described or filed as
required by the 1933 Act, the 1940 Act or the Rules and Regulations.
(f) The Fund is not in violation of its Declaration of Trust or By-
Laws or in material violation of any material law, ordinance,
administrative or governmental rule or regulation applicable to the Fund or
of any material decree of the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court or
any other governmental, regulatory, self-regulatory or administrative
agency or any official having jurisdiction over the Fund or in breach or
default in any material respect in the performance of any obligation,
agreement or condition contained in any material bond, debenture, note or
any other evidence of indebtedness or in any agreement, indenture, lease or
other instrument to which the Fund is a party or by which it or any of its
properties may be bound.
(g) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement nor any of the Fund Agreements by
the Fund, nor the consummation by the Fund of the transactions contemplated
hereby or thereby (A) requires any consent, approval, authorization or
other order of or registration or filing with the Commission, the NASD, any
national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
official (except compliance with the securities or Blue Sky laws of various
jurisdictions which have been or will be effected in accordance with this
Agreement and except for compliance with the filing requirements of the
NASD Division of Corporate Finance) or conflicts or will conflict with or
constitutes or will constitute a breach of the Declaration of Trust or By-
Laws of the Fund or (B) conflicts or will conflict with or constitutes or
will constitute a breach of or a default under, any material agreement,
indenture, lease or other instrument to which the Fund is a party or by
which it or any of its properties may be bound or materially violates or
will materially violate any material statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Fund or any of its
properties or will result in the creation or imposition of any material
lien, charge or encumbrance upon any property or assets of the Fund
pursuant to the terms of any agreement or instrument to which it is a party
or by which it may be bound or to which any of the property or assets of
the Fund is subject.
(h) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), except as otherwise stated therein, (A) there has been
no material, adverse change in the condition
11
(financial or other), business, properties, net assets or results of
operations of the Fund or business prospects (other than as a result of a
change in the financial markets generally) of the Fund, whether or not
arising in the ordinary course of business, (B) there have been no
transactions entered into by the Fund which are material to the Fund other
than those in the ordinary course of its business as described in the
Prospectus (and any amendment or supplement thereto) and (C) there has been
no dividend or distribution of any kind declared, paid or made by the Fund
on any class of its common stock.
(i) The accountants, Ernst & Young LLP, who have audited or shall
audit the Statement of Assets and Liabilities included in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them), are an independent public accounting firm as required by the 1933
Act, the 1940 Act and the Rules and Regulations.
(j) The financial statements, together with related schedules and
notes, included in the Registration Statement or the Prospectus (or any
amendment or supplement to either of them) present fairly the financial
position of the Fund on the basis stated in the Registration Statement at
the respective dates or for the respective periods to which they apply;
such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved except as disclosed therein; and
the other financial and statistical information and data included in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto) are accurately derived from such financial statements and the
books and records of the Fund.
(k) The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497 under
the Rules and Regulations, has taken all required action under the 1933
Act, the 1940 Act and the Rules and Regulations to make the public offering
and consummate the sale of the Shares as contemplated by this Agreement.
(l) The execution and delivery of and the performance by the Fund of
its obligations under this Agreement and the Fund Agreements have been duly
and validly authorized by the Fund and this Agreement and the Fund
Agreements have been duly executed and delivered by the Fund and constitute
the valid and legally binding agreements of the Fund, enforceable against
the Fund in accordance with their terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws
and subject to the qualification that the enforceability of the Fund's
obligations hereunder and thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable principles.
(m) Except as disclosed in the Registration Statement and the
Prospectus (or and any amendment or supplement to either of them),
subsequent to the respective dates as of which such information is given in
the Registration Statement and the Prospectus (and
12
any amendment or supplement to either of them), the Fund has not incurred
any liability or obligation, direct or contingent or entered into any
transaction, not in the ordinary course of business, that is material to
the Fund and there has not been any change in the capital stock or material
increase in the short-term debt or long-term debt of the Fund or any
material, adverse change or any development involving or which should
reasonably be expected to involve a prospective material, adverse change in
the condition (financial or other), business, properties, net assets or
results of operations of the Fund.
(n) The Fund has not distributed and, prior to the later to occur of
(i) the Closing Date and (ii) completion of the distribution of the Shares,
will not distribute to the public any offering material in connection with
the offering and sale of the Shares other than the Registration Statement,
the Prepricing Prospectus included in Pre-Effective Amendment No. 2 to the
Registration Statement, the Prospectus and the advertisements/sales
literature filed by Nuveen Investments with the NASD on November 8, 2000.
(o) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus (and any amendment or supplement thereto); the Fund has
fulfilled and performed all its material obligations with respect to such
permits and no event has occurred which allows or, after notice or lapse of
time, would allow, revocation or termination thereof or results in any
other material impairment of the rights of the Fund under any such permit,
subject in each case to such qualification as may be set forth in the
Prospectus (and any amendment or supplement thereto); and, except as
described in the Prospectus (and any amendment or supplement thereto), none
of such permits contains any restriction that is materially burdensome to
the Fund.
(p) The Fund maintains and 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 and with the investment policies and restrictions of
the Fund and the applicable requirements of the 1940 Act, the 1940 Act
Rules and Regulations and the Internal Revenue Code of 1986, as amended;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles, to calculate net asset value, to maintain accountability for
assets and to maintain material compliance with the books and records
requirements under the 1940 Act and the 1940 Act Rules and Regulations;
(iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded account for assets
is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(q) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or licensee of
any patents, patent licenses, trademarks, service marks or trade names
which it does not own, possess or license.
13
(r) Except as stated in this Agreement and in the Prospectus (and any
amendment or supplement thereto), the Fund has not taken and will not take,
directly or indirectly, any action designed to or which should reasonably
be expected to cause or result in or which will constitute stabilization or
manipulation of the price of the Common Shares in violation of federal
securities laws and the Fund is not aware of any such action taken or to be
taken by any affiliates of the Fund.
(s) The Fund is duly registered under the 1940 Act as a closed-end,
non-diversified management investment company and the 1940 Act Notification
has been duly filed with the Commission and, at the time of filing thereof
and at the time of filing any amendment or supplement thereto, conformed in
all material respects with all applicable provisions of the 1940 Act and
the Rules and Regulations. The Fund has not received any notice from the
Commission pursuant to Section 8(e) of the 1940 Act with respect to the
1940 Act Notification or the Registration Statement (or any amendment or
supplement to either of them).
(t) All advertising, sales literature or other promotional material
(including "prospectus wrappers", "broker kits", "road show slides" and
"road show scripts"), whether in printed or electronic form, authorized in
writing by or prepared by the Fund or the Manager for use in connection
with the offering and sale of the Shares (collectively, "sales material")
complied and comply in all material respects with the applicable
requirements of the 1933 Act, the 1933 Act Rules and Regulations and the
rules and interpretations of the NASD and if required to be filed with the
NASD under the NASD's conduct rules were so filed. No sales material
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(u) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1940 Act, the 1940
Act Rules and Regulations, the Investment Advisers Act of 1940, as amended
(the "Advisers Act") and the rules and regulations adopted by the
Commission under the Advisers Act (the "Advisers Act Rules and
Regulations").
(v) No holder of any security of the Fund has any right to require
registration of Common Shares or any other security of the Fund because of
the filing of the registration statement or consummation of the
transactions contemplated by this Agreement.
(w) The Shares have been duly approved for listing upon notice of
issuance on the AMEX and the Fund's registration statement on Form 8-A,
under the 1934 Act, has become effective.
(x) The Fund intends to direct the investment of the proceeds of the
offering of the Shares in such a manner as to comply with the requirements
of Subchapter M of the Internal Revenue Code of 1986, as amended.
14
7. Representations and Warranties of the Manager. The Manager
------------------------------------------------
represents and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing
in good standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them) and is duly
registered and qualified to conduct business and is in good standing in
each jurisdiction or place where the nature of its properties or conduct of
its business requires such registration or qualification, except where the
failure so to register or to qualify would not have a material, adverse
effect on the condition (financial or other), business, properties, net
assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the
Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the
Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations
from acting under the Management Agreement for the Fund as contemplated by
the Registration Statement and the Prospectus (or any amendment or
supplement thereto).
(c) The Manager has full power and authority to enter into this
Agreement and the Management Agreement, the execution and delivery of, and
the performance by the Manager of its obligations under, this Agreement and
the Management Agreement have been duly and validly authorized by the
Manager and this Agreement and the Management Agreement have been duly
executed and delivered by the Manager and constitute the valid and legally
binding agreements of the Manager, enforceable against the Manager in
accordance with their terms, except as rights to indemnity and contribution
hereunder may be limited by federal or state securities laws and subject to
the qualification that the enforceability of the Manager's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary
for the performance of its services and obligations as contemplated in the
Registration Statement, the Prospectus (or any amendment or supplement
thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the
statements attributable to the Manager, in the Registration Statement and
the Prospectus (and any amendment or supplement thereto) complied and
comply in all material respects with the provisions of the 1933 Act, the
1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act
Rules and Regulations and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading.
15
(f) There are no legal or governmental proceedings pending or, to the
knowledge of the Manager, threatened against the Manager or to which any of
its properties is subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them) but are not described as required or that reasonably should
result in any material, adverse change in the condition (financial or
other), business, properties, net assets or results of operations of the
Manager or that reasonably should have a material, adverse effect on the
ability of the Manager to fulfill its obligations hereunder or under the
Management Agreement.
(g) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), except as otherwise stated therein, (A) there has been
no material, adverse change in the condition (financial or other),
business, properties, net assets or results of operations or business
prospects of the Manager, whether or not arising from the ordinary course
of business and (B) there have been no transactions entered into by the
Manager which are material to the Manager other than those in the ordinary
course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus; the Manager has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material
respects with all applicable provisions of the 1940 Act, the 1940 Act Rules
and Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(j) Neither the execution, delivery or performance of this Agreement
or the Management Agreement by the Manager, nor the consummation by the
Manager of the transactions contemplated hereby or thereby (A) requires any
consent, approval, authorization or other order of or registration or
filing with the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
official (except compliance with the securities or Blue Sky laws of various
jurisdictions which have been or will be effected in accordance with this
Agreement and except for compliance with the filing requirements of the
NASD Division of Corporate Finance) or conflicts or will conflict with or
constitutes or will constitute a breach of or a default under, the
Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or
will conflict with or constitutes or will constitute a breach of or a
default under, any material agreement, indenture, lease or other instrument
to which the Manager is a party or by which it or any of its properties may
be bound or materially violates or will
16
materially violate any material statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Manager or any of
its properties or will result in the creation or imposition of any material
lien, charge or encumbrance upon any property or assets of the Manager
pursuant to the terms of any agreement or instrument to which it is a party
or by which it may be bound or to which any of the property or assets of
the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in
any amendment or supplement thereto), the Manager has not taken and will
not take, directly or indirectly, any action designed to or which should
reasonably be expected to cause or result in or which will constitute,
stabilization or manipulation of the price of the Common Shares in
violation of federal securities laws and the Manager is not aware of any
such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any
promotional materials intended for use only by qualified broker-dealers and
registered representatives thereof by means of an Internet web site or
similar electronic means, the Manager will install and maintain pre-
qualification and password-protection or similar procedures which are
reasonably designed to effectively prohibit access to such promotional
materials by persons other than qualified broker-dealers and registered
representatives thereof.
8. Indemnification and Contribution.
-----------------------------------
(a) The Fund and the Manager, jointly and severally, agree to
indemnify and hold harmless each of you and each other Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, from and against any and
all losses, claims, damages, liabilities and expenses, joint or several
(including reasonable costs of investigation) arising out of or based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus, any Prepricing
Prospectus, any sales material (or any amendment or supplement to any of
the foregoing) or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus, in
light of the circumstances under which they were made) not misleading,
except insofar as such losses, claims, damages, liabilities or expenses
arise out of or are based upon any untrue statement or omission or alleged
untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating
to such Underwriters furnished in writing to the Fund by or on behalf of
any Underwriter through you expressly for use in connection therewith;
provided, however, that the foregoing indemnity with respect to the
Registration Statement, the Prospectus or any Prepricing Prospectuses (or
any amendment or supplement to any of the foregoing) shall not inure to the
benefit of any Underwriter from whom the person asserting any loss, claim,
damage, liability or expense purchased Shares, if it is shown
17
that a copy of the Prospectus, as then amended or supplemented, which would
have cured any defect giving rise to such loss, claim, damage, liability or
expense was not sent or delivered to such person by or on behalf of such
Underwriter, if required by law to be so delivered, at or prior to the
confirmation of the sale of such Shares to such person and such Prospectus,
amendments and supplements had been provided by the Fund to the
Underwriters in the requisite quantity and on a timely basis to permit
proper delivery. The foregoing indemnity agreement shall be in addition to
any liability which the Fund or the Manager may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Fund or the Manager, such Underwriter
or such controlling person shall promptly notify the Fund or the Manager
and the Fund or the Manager shall assume the defense thereof, including the
employment of counsel and the payment of all fees and expenses. Such
Underwriter or any such controlling person shall have the right to employ
separate counsel in any such action, suit or proceeding and to participate
in the defense thereof, but the fees and expenses of such counsel shall be
at the expense of such Underwriter or controlling person unless (i) the
Fund or the Manager have agreed in writing to pay such fees and expenses,
(ii) the Fund and the Manager have failed within a reasonable time to
assume the defense and employ counsel or (iii) the named parties to any
such action, suit or proceeding (including any impleaded parties) include
both such Underwriter or such controlling person and the Fund or the
Manager and such Underwriter or such controlling person shall have been
advised by its counsel that representation of such indemnified party and
the Fund or the Manager by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the Fund and the
Manager shall not have the right to assume the defense of such action, suit
or proceeding on behalf of such Underwriter or such controlling person).
It is understood, however, that the Fund and the Manager shall, in
connection with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances
be liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel if there is any action, suit or
proceeding in more than one jurisdiction) at any time for all such
Underwriters and controlling persons not having actual or potential
differing interests with you or among themselves, which firm shall be
designated in writing by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and that, subject to the
requirements of 1940 Act Release No. 11330, all such fees and expenses
shall be reimbursed promptly as they are incurred. The Fund and the
Manager shall not be liable for any settlement of any such action, suit or
proceeding effected without the written consent of the Fund or the Manager,
but if settled with such written consent or if there be a final judgment
for the plaintiff in any such action, suit or proceeding, the Fund and the
Manager agree to indemnify and hold harmless any Underwriter, to the extent
provided in the preceding
18
paragraph, and any such controlling person from and against any loss,
liability, damage or expense by reason by such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Fund and the Manager, their trustees, directors, any
officers of the Fund who sign the Registration Statement and any person who
controls the Fund or the Manager within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, to the same extent as the foregoing
indemnity from the Fund and the Manager to each Underwriter, but only with
respect to information relating to such Underwriter furnished in writing by
or on behalf of such Underwriter through you expressly for use in the
Registration Statement or the Prospectus (or any amendment or supplement or
to either of them). If any action, suit or proceeding shall be brought
against the Fund or the Manager, any of their trustees, directors, any such
officer or any such controlling person, based on the Registration Statement
or the Prospectus (or any amendment or supplement to either of them) and in
respect of which indemnity may be sought against any Underwriter pursuant
to this paragraph (c), such Underwriter shall have the rights and duties
given to the Fund by paragraph (b) above (except that if the Fund or the
Manager shall have assumed the defense thereof such Underwriter shall not
be required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of such
counsel shall be at such Underwriter's expense) and the Fund and the
Manager, their trustees, directors, any such officer and any such
controlling person shall have the rights and duties given to the
Underwriters by paragraph (b) above. The foregoing indemnity agreement
shall be in addition to any liability which the Underwriters may otherwise
have.
(d) If the indemnification provided for in this section 8 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities
or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Fund and the Manager on the one hand
(treated jointly for this purpose as one person) and the Underwriters on
the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Fund and
the Manager on the one hand (treated jointly for this purpose as one
person) and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Fund and the Manager
on the one hand (treated jointly for this purpose as one person) and the
Underwriters on the other hand shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Fund as set forth in the table on the cover page of the
Prospectus bear to the total payments received by the Underwriters with
respect to the Firm Shares as set
19
forth in the table on the cover page of the Prospectus. The relative fault
of the Fund and the Manager on the one hand (treated jointly for this
purpose as one person) and of the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Fund and the Manager on the one hand (treated jointly for this purpose as
one person) or by the Underwriters on the other hand and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Fund, the Manager and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 8 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 paragraph
(d) above. The amount paid or payable by an indemnified party as a result
of the losses, claims, damages, liabilities and expenses referred to in
paragraph (d) above shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price of the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 8 are several in proportion to the
respective number of Firm Shares set forth opposite their names in Schedule
I (or such numbers of Firm Shares increased as set forth in Section 10
hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability from claimants on
claims that are the subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Fund and the Manager set forth in
this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter
or any person controlling any Underwriter, the Fund, the Manager or their
trustees, directors or officers or any
20
person controlling the Fund or the Manager, (ii) acceptance of any Shares
and payment therefor hereunder and (iii) any termination of this Agreement.
A successor to any Underwriter or to the Fund, the Manager or their
trustees, directors or officers or any person controlling any Underwriter,
the Fund or the Manager shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 8.
9. Conditions of Underwriters' Obligations. The several obligations of the
------------------------------------------
Underwriters to purchase any Shares hereunder are subject to, in the good faith
judgment of the Underwriters, the accuracy of and compliance with the
representations, warranties and agreements of and by the Fund and the Manager
contained herein on and as of the date hereof, the date on which the
Registration Statement becomes or became effective, the date of the Prospectus
(and of any amendment or supplement thereto), the Closing Date and, with respect
to any Additional Shares, any Option Closing Date; to the accuracy and
completeness of all statements made by the Fund, the Manager or any of their
officers in any certificate delivered to the Representatives or their counsel
pursuant to this Agreement and to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the Registration Statement or such post-effective amendment shall
have become effective not later than 5:30 p.m., New York City time, on the
date hereof or at such later date and time as shall be consented to in
writing by you and all filings, if any, required by Rules 497 and 430A
under the 1933 Act Rules and Regulations shall have been timely made; no
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceeding for that purpose shall have been instituted
or, to the knowledge of the Fund, the Manager or any Underwriter,
threatened by the Commission and any request of the Commission for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to your
satisfaction.
(b) You shall have received on the Closing Date an opinion of ▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇, special counsel for the Fund and Manager, dated the Closing
Date and addressed to you, as Representatives of the several Underwriters,
to the effect that:
(i) The Fund is a business trust duly organized, validly existing
and in good standing under the laws of The Commonwealth of
Massachusetts with full power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto through the date of the opinion) and is duly
registered and qualified to conduct its business and is in good
standing in each jurisdiction where the nature of its properties or
the conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify
does not have a material, adverse effect on the condition (financial
or other), business, properties, net assets or results of operations
of the Fund;
21
(ii) The authorized and outstanding capital stock of the Fund is
as set forth in the Registration Statement and Prospectus (or any
amendment or supplement thereto through the date of the opinion); and
the description of the authorized capital stock of the Fund contained
in the Prospectus (or any amendment or supplement thereto through the
date of the opinion) under the caption "Description of Shares"
conforms in all material respects as to legal matters to the terms
thereof contained in the Fund's Declaration of Trust;
(iii) All the shares of capital stock of the Fund outstanding
prior to the issuance of the Shares have been duly authorized and
validly issued and are fully paid and nonassessable, except that, as
described in the Prospectus under the heading, "Certain Provisions in
the Declaration of Trust," shareholders of the Fund may under certain
circumstances be held personally liable for its obligations;
(iv) The Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance
with the terms hereof, will be validly issued, fully paid and
nonassessable not subject to any preemptive rights that entitle or
will entitle any person to acquire any Shares upon the issuance
thereof by the Fund, except that, as described in the Prospectus under
the heading, "Certain Provisions in the Declaration of Trust,"
shareholders of the Fund may under certain circumstances be held
personally liable for its obligations;
(v) The form of certificates for the Shares is in due and proper
form and complies with the requirements of all applicable laws and the
AMEX;
(vi) The Fund has the power and authority to enter into this
Agreement and the Fund Agreements and to issue, sell and deliver the
Shares to the Underwriters as provided herein and this Agreement and
each of the Fund Agreements have been duly authorized, executed and
delivered by the Fund and assuming due authorization, execution and
delivery by the other parties thereto, constitute the valid, legal and
binding agreements of the Fund, enforceable against the Fund in
accordance with their terms, except as enforcement of rights to
indemnity hereunder may be limited by Federal or state securities laws
or principles of public policy and subject to the qualification that
the enforceability of the Fund's obligations hereunder and thereunder
may be limited by bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors' rights generally
and by general equitable principles, whether enforcement is considered
in a proceeding in equity or at law;
(vii) This Agreement constitutes a valid, legal and binding
agreement of the Manager, enforceable against the Manager in
accordance with its terms, except as enforcement of rights to
indemnity hereunder may be limited by Federal or state securities laws
or principles of public policy and subject to the
22
qualification that the enforceability of the Manager's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles,
whether enforcement is considered in a proceeding in equity or at law;
(viii) The Fund Agreements comply in all material respects with
all applicable provisions of the 1933 Act, the 1940 Act, the Advisers
Act, the Rules and Regulations and the Advisers Act Rules and
Regulations;
(ix) The Fund is not in violation of its Declaration of Trust or
By-Laws or to the best knowledge of such counsel after reasonable
inquiry, is not in material default in the performance of any material
obligation, agreement or condition contained in any bond, debenture,
note or other evidence of indebtedness, except as may be disclosed in
the Prospectus (and any amendment or supplement thereto);
(x) No consent, approval, authorization or order of or
registration or filing with the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental body, agency or
regulatory, self-regulatory or administrative agency or any official
is required on the part of the Fund (except as have been obtained
under the 1933 Act and the 1934 Act or such as may be required under
state securities or Blue Sky laws governing the purchase and
distribution of the Shares) for the valid issuance and sale of the
Shares to the Underwriters as contemplated by this Agreement,
performance of the Fund Agreements or this Agreement by the Fund, the
consummation by the Fund of the transactions contemplated thereby or
hereby or the adoption of the Fund's Dividend Reinvestment Plan;
(xi) Neither the offer, sale or delivery of the Shares, the
execution, delivery or performance of this Agreement or the Fund
Agreements, compliance by the Fund with the provisions hereof or
thereof, consummation by the Fund of the transactions contemplated
hereby or thereby nor the adoption of the Fund's Dividend Reinvestment
Plan conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the Declaration of Trust or By-Laws
of the Fund or any material agreement, indenture, lease or other
instrument to which the Fund is a party or by which it or any of its
properties is bound that is an exhibit to the Registration Statement
or that is known to such counsel after reasonable inquiry or, to the
best of such counsel's knowledge after reasonable inquiry, will result
in the creation or imposition of any material lien, charge or
encumbrance upon any property or assets of the Fund, nor, to the best
of such counsel's knowledge after reasonable inquiry, will any such
action result in any violation of any existing material law,
regulation, ruling (assuming compliance with all applicable state
securities and Blue Sky laws), judgment, injunction, order
23
or decree known to such counsel after reasonable inquiry, applicable
to the Fund or any of its properties, except that, in the published
opinion of the Commission, the indemnification provisions in this
Agreement and the Fund Agreements, insofar as they relate to
indemnification for liabilities arising under the 1933 Act, are
against public policy as expressed in the 1933 Act and therefore
unenforceable;
(xii) The Registration Statement and all post-effective
amendments, if any, have become effective under the 1933 Act and, to
the best knowledge of such counsel after reasonable inquiry, no order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose are pending before or
contemplated by the Commission; and any filing of the Prospectus and
any amendments or supplements thereto required pursuant to Rule 497 of
the 1933 Act Rules and Regulations prior to the date of such opinion
have been made in accordance with Rule 497;
(xiii) The Fund is duly registered with the Commission under the
1940 Act as a closed-end, non-diversified management investment
company and all action has been taken by the Fund as required by the
1933 Act and the 1940 Act and the Rules and Regulations in connection
with the issuance and sale of the Shares to make the public offering
and consummate the sale of the Shares as contemplated by this
Agreement;
(xiv) The statements made in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them through
the date of the opinion) under the caption "Tax Matters" have been
reviewed by such counsel and to the extent they describe or summarize
tax laws, doctrines or practices of the United States, present a fair
and accurate description or summary thereof as of the date of the
opinion;
(xv) The statements in the Registration Statement and Prospectus
(and any amendment or supplement to either of them through the date of
the opinion), insofar as they are descriptions of contracts,
agreements or other legal documents or refer to statements of law or
legal conclusions, are accurate and present fairly the information
required to be shown;
(xvi) The Registration Statement and the Prospectus (and any
amendment or supplement to either of them through the date of the
opinion) comply as to form in all material respects with the
requirements of the 1933 Act, the 1940 Act and the Rules and
Regulations (except that no opinion need be expressed as to the
financial statements and the notes thereto and the schedules and other
financial and statistical data included therein as to which such
counsel need not express any opinion);
24
(xvii) To the best knowledge of such counsel after reasonable
inquiry, (A) other than as described or contemplated in the Prospectus
(or any amendment or supplement thereto through the date of the
opinion), there are no actions, suits or other legal or governmental
proceedings pending or expressly threatened against the Fund and (B)
there are no material agreements, contracts, indentures, leases or
other instruments that are required to be described in the
Registration Statement or the Prospectus (or any amendment or
supplement to either of them through the date of the opinion) or to be
filed as an exhibit to the Registration Statement that are not
described or filed as required, as the case may be;
(xviii) To the best knowledge of such counsel after reasonable
inquiry, the Fund is not in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to the
Fund or of any decree of the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory, self-
regulatory or administrative agency or any official having
jurisdiction over the Fund; and
(xix) The Shares are duly authorized for listing, subject to
official notice of issuance, on the American Stock Exchange and the
Fund's registration statement on Form 8-A under the 1934 Act is
effective.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement, such counsel has
participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof, and nothing
has come to the attention of such counsel that has caused it to believe that the
Registration Statement, at the time the Registration Statement became effective
or the Prospectus, as of its date and as of the Closing Date, as the case may
be, or the Option Closing Date, 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 (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading or that any amendment
or supplement to the Prospectus, as of the Closing Date or the Option Closing
Date, contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no view with respect to the financial statements
and the notes thereto and the schedules and other financial and statistical data
included in the Registration Statement or the Prospectus).
In rendering such opinion, such counsel may limit such opinion to
matters involving the application of the laws of The Commonwealth of
Massachusetts and the United States and may rely, as to matters involving the
application of laws of The Commonwealth of Massachusetts, to the extent they
deem proper and specified in such opinion, upon the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP
or other counsel of good standing whom
25
they believe to be reliable and who are satisfactory to the Representatives;
provided that (X) such reliance is expressly authorized by the opinion so relied
upon and a copy of each such opinion is delivered to the Representatives and is,
in form and substance, satisfactory to them and their counsel and (Y) ▇▇▇▇, ▇▇▇▇
& ▇▇▇▇▇ states in their opinion that they believe that they and the Underwriters
are justified in relying thereon.
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇ ▇.
Berkshire, Vice President, Secretary and General Counsel for the Manager, or
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President, Assistant Secretary and Associate General
Counsel for the Manager, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) The Manager is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware with
full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them) and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction or
place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the
failure so to register or to qualify does not have a material, adverse
effect on the condition (financial or other), business, properties,
net assets or results of operations of the Manager;
(ii) The Manager is duly registered with the Commission under the
Advisers Act as an investment adviser and is not prohibited by the
Advisers Act, the 1940 Act or the Rules and Regulations under such
acts from acting for the Fund under the Management Agreement as
contemplated by the Prospectus (and any amendment or supplement
thereto);
(iii) The Manager has corporate power and authority to enter into
this Agreement and the Management Agreement and this Agreement and the
Management Agreement have been duly authorized, executed and delivered
by the Manager and the Management Agreement is a valid, legal and
binding agreement of the Manager, enforceable against the Manager in
accordance with its terms, except as enforcement of rights to
indemnity and contribution hereunder may be limited by Federal or
state securities laws or principles of public policy and subject to
the qualification that the enforceability of the Manager's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles;
(iv) The Management Agreement complies in all material respects
with all applicable provisions of the Advisers Act, the 1940 Act and
the Advisers Act Rules and Regulations and the 1940 Act Rules and
Regulations;
26
(v) Neither the execution and delivery by the Manager of this
Agreement or the Management Agreement nor the consummation by the
Manager of the transactions contemplated hereunder or thereunder
constitutes or will constitute a breach of or a default under the
Certificate of Incorporation or By-Laws of the Manager or any material
agreement, indenture, lease or other instrument to which the Manager
is a party or by which it or any of its properties is bound that is
known to such counsel after reasonable inquiry, or will result in the
creation or imposition of any material lien, charge or encumbrance
upon any property or assets of the Manager, nor will any such action
result in any violation of any existing material law, regulation,
ruling (assuming compliance with all applicable state securities and
Blue Sky laws), judgment, injunction, order or decree known to such
counsel after reasonable inquiry, applicable to the Fund or any of its
properties;
(vi) The description of the Manager and its business in the
Prospectus (and any amendment or supplement thereto) complies in all
material respects with all requirements of the 1933 Act, the 1940 Act
and the Rules and Regulations;
(vii) To the best knowledge of such counsel after reasonable
inquiry, other than as described or contemplated in the Prospectus
(and any amendment or supplement thereto), there are no actions, suits
or other legal or governmental proceedings pending or threatened
against the Manager or to which the Manager or any of its property is
subject which are required to be described in the Registration
Statement or Prospectus (or any amendment or supplement to either of
them);
(viii) The Manager owns, possesses or has obtained and currently
maintains all governmental licenses, permits, consents, orders,
approvals and other authorizations as are necessary for the Manager to
carry on its business as contemplated in the Prospectus (and any
amendment or supplement thereto); and
(ix) No material consent, approval, authorization or order of or
registration or filing with any court, regulatory body, administrative
or other governmental body, agency or official is required on the part
of the Manager for the performance of this Agreement or the Management
Agreement by the Manager or for the consummation by the Manager of the
transactions contemplated hereby or thereby.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in its opinion, to determine
independently and does not assume any responsibility for, the accuracy
or completeness of the statements in the Registration Statement, such
counsel has participated in the preparation of the Registration
Statement and the Prospectus, including review and discussion of the
contents thereof and nothing has come to its attention that has caused
it to believe that the Registration Statement at the time it became
effective or the
27
Prospectus, as of its date and as of the Closing Date or the Option
Closing Date, as the case may be, 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 (in the
case of a prospectus, in light of the circumstances under which they
were made) not misleading or that any amendment or supplement to the
Prospectus, as of the Closing Date or the Option Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading
(it being understood that such counsel need express no opinion with
respect to the financial statements and the notes thereto and the
schedules and other financial and statistical data included in the
Registration Statement or the Prospectus).
In rendering such opinion, counsel may limit such opinion to
matters involving the application of the laws of the State of
Illinois, the Delaware General Corporation Law statute and the laws of
the United States and may rely upon an opinion or opinions, each dated
the Closing Date, of other counsel retained by the Manager as to laws
of any jurisdiction other than the United States, the State of
Illinois and the Delaware General Corporation Law statute, provided
that (X) each such local counsel is acceptable to the Representatives,
(Y) such reliance is expressly authorized by each opinion so relied
upon and a copy of each such opinion is delivered to the
Representatives and is, in form and substance satisfactory to them and
their counsel and (Z) counsel shall state in their view that they
believe that they and the Underwriters are justified in relying
thereon.
(d) You shall have received on the Closing Date an opinion of
[___________], special counsel for the Fund, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters' to the effect
that:
(i) The statements contained in the Prospectus under the
headings "Risks - Concentration Risk" and "Tax Matters - Massachusetts
Tax Matters," in ▇▇▇▇▇▇▇▇ ▇-▇ to the statement of additional
information under the headings "Factors Pertaining to Massachusetts"
and "Massachusetts Tax Matters" and in Appendix B to the statement of
additional information under the heading "Massachusetts", to the
extent that such statements constitute matters of law or legal
conclusions, provide a fair and accurate summary of such law or
conclusions. Such statements are based on current law and special
counsel's understanding of the Fund's proposed operations, as
disclosed in the Prospectus.
Such counsel shall also state that although special counsel does not
pass upon or assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus (other than to the extent set forth above), and has not made any
independent check or verification thereof, no facts have come to the attention
of such special counsel which would lead it to believe that the material
28
contained in the Prospectus under the headings "Risks - Concentration Risk" and
"Tax Matters - Massachusetts Tax Matters," in ▇▇▇▇▇▇▇▇ ▇-▇ to the statement of
additional information under the headings "Factors Pertaining to Massachusetts"
and "Massachusetts Tax Matters" and in Appendix B to the statement of additional
information under the heading "Massachusetts", as of their respective dates or
the Closing Date or the Option Closing Date, contained any 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, in the light of the circumstances
under which they were made, not misleading or that any statement contained in
any amendment or supplement to the Prospectus or statement of additional
information under such headings, as of its respective date, and as of the
Closing Date or the Option Closing Date, contained any untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such special counsel may rely as to matters of fact,
to the extent such special counsel deems proper, on certificates of responsible
officers of the Fund and of the Manager, and of public officials.
(e) That you shall have received on the Closing Date, an opinion, dated
the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters,
dated the Closing Date and addressed to you, as Representatives of the several
Underwriters, with respect to such matters as the Underwriters may require and
the Fund, the Manager and their respective counsels shall have furnished to such
counsel such documents as they may request for the purpose of enabling them to
pass upon such matters.
(f) That you shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date from Ernst & Young LLP, independent certified public accountants,
substantially in the forms heretofore approved by you.
(g) (i) No order suspending the effectiveness of the registration
statement or the Registration Statement or prohibiting or suspending the use of
the Prospectus (or any amendment or supplement thereto) or any Prepricing
Prospectus or any sales material shall have been issued and no proceedings for
such purpose or for the purpose of commencing an enforcement action against the
Fund, the Manager or, with respect to the transactions contemplated by the
Prospectus (or any amendment or supplement thereto) and this Agreement, any
Underwriter, may be pending before or, to the knowledge of the Fund, the Manager
or any Underwriter or in the reasonable view of counsel to the Underwriters,
shall be threatened or contemplated by the Commission at or prior to the Closing
Date and that any request for additional information on the part of the
Commission (to be included in the Registration Statement, the Prospectus or
otherwise) be complied with to the satisfaction of the Representatives, (ii)
there shall not have been any change in the capital stock of the Fund nor any
material increase in debt of the Fund from that set forth in the Prospectus (and
any amendment or supplement thereto) and the
29
Fund shall not have sustained any material liabilities or obligations, direct or
contingent, other than those reflected in the Prospectus (and any amendment or
supplement thereto); (iii) since the date of the Prospectus there shall not have
been any material, adverse change in the condition (financial or other),
business, prospects, properties, net assets or results of operations of the Fund
or the Manager; (iv) the Fund and the Manager 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 or from any other
occurrence not described in the Registration Statement and the Prospectus (and
any amendment or supplement to either of them); and (v) all of the
representations and warranties of the Fund and the Manager contained in this
Agreement shall be true and correct on and as of the date hereof and as of the
Closing Date as if made on and as of the Closing Date.
(h) Subsequent to the effective date of this Agreement, there shall not
have occurred (i) any change or any development involving a prospective change
in or affecting the condition (financial or other), business, prospects,
properties, net assets or results of operations of the Fund or the Manager not
contemplated by the Prospectus (and any amendment or supplement thereto), which
in your opinion, as Representatives of the several Underwriters, would
materially, adversely affect the market for the Shares or (ii) any event or
development relating to or involving the Fund, the Manager or any officer or
trustee or director of the Fund or the Manager which makes any statement of a
material fact made in the Prospectus (or any amendment or supplement thereto)
untrue or which, in the opinion of the Fund and its counsel or the Underwriters
and their counsel, requires the making of any addition to or change in the
Prospectus (or any amendment or supplement thereto) in order to state a material
fact required by the 1933 Act, the 1940 Act, the Rules and Regulations or any
other law to be stated therein or necessary in order to make the statements
therein (in the case of a prospectus, in light of the circumstances under which
they were made) not misleading, if amending or supplementing the Prospectus (or
any amendment or supplement thereto) to reflect such event or development would,
in your opinion, as Representatives of the several Underwriters, materially,
adversely affect the market for the Shares.
(i) That neither the Fund nor the Manager shall have failed at or prior
to the Closing Date to have performed or complied with any of the agreements
herein contained and required to be performed or complied with by them at or
prior to the Closing Date.
(j) That you shall have received on the Closing Date a certificate, dated
such date, of the president or any vice president and of the controller or
treasurer of each of the Fund and the Manager certifying that (i) the signers
have carefully examined the Registration Statement, the Prospectus (and any
amendments or supplements to either of them) and this Agreement, (ii) the
representations and warranties of the Fund (with respect to the certificates
from such Fund officers) and the representations of the Manager (with respect to
the certificates from such officers of the Manager) in this Agreement are true
and correct on and as of the date of the certificate as if made on such date,
(iii) since the date of the Prospectus (and any amendment or supplement thereto)
there has not been
30
any material, adverse change in the condition (financial or other), business,
prospects (other than as a result of a change in the financial markets
generally), properties, net assets or results of operations of the Fund (with
respect to the certificates from such Fund officers) or the Manager (with
respect to the certificates from such officers of the Manager), (iv) to the
knowledge of such officers after reasonable investigation, no order suspending
the effectiveness of the Registration Statement or prohibiting the sale of any
of the Shares or having a material, adverse effect on the Fund (with respect to
the certificates from such Fund officers) or the Manager (with respect to the
certificates from such officers of the Manager) has been issued and no
proceedings for any such purpose are pending before or threatened by the
Commission or any court or other regulatory body, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court or any
other governmental, regulatory, self-regulatory or administrative agency or any
official, (v) each of the Fund (with respect to certificates from such Fund
officers) and the Manager (with respect to certificates from such officers of
the Manager) has performed and complied with all agreements that this Agreement
require it to perform by such Closing Date, (vi) neither the Fund (with respect
to the certificate from such officers of the Fund) nor the Manager (with respect
to the certificate from such officers of the Manager) has sustained any material
loss or interference with its business from any court or from legislative or
other governmental action, order or decree or from any other occurrence not
described in the Registration Statement and the Prospectus and any amendment or
supplement to either of them and (vii) with respect to the certificate from such
officers of the Fund, there has not been any change in the capital stock of the
Fund nor any material increase in the debt of the Fund from that set forth in
the Prospectus (and any amendment or supplement thereto) and the Fund has not
sustained any material liabilities or obligations, direct or contingent, other
than those reflected in the Prospectus (and any amendment or supplement
thereto).
(k) That the Fund and the Manager shall have furnished to you such
further certificates, documents and opinions of counsel as you shall reasonably
request (including certificates of officers of the Fund and the Manager).
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and your counsel acting in good faith.
Any certificate or document signed by any officer of the Fund or the
Manager and delivered to you, as Representatives of the Underwriters or to
Underwriters' counsel, shall be deemed a representation and warranty by the Fund
or the Manager to each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to (i) the accuracy of and compliance with the and
warranties of the Fund and the Manager contained herein on and as of the Option
Closing Date as though made on any Option Closing Date, (ii) satisfaction on and
as of any
31
Option Closing Date of the conditions set forth in this Section 9 except
that, if any Option Closing Date is other than the Closing Date, the
certificates, opinions and letters referred to in paragraphs (b), (c), (d),
(e), (f), (j), (k) and this paragraph shall be dated the Option Closing
Date in question and the opinions called for by paragraphs (b), (c), (d)
and (e) shall be revised to reflect the sale of Additional Shares and (iii)
the absence of circumstances on or prior to the Option Closing Date which
would permit termination of this Agreement pursuant to Section 11 hereof if
they existed on or prior to the Closing Date.
10. Effective Date of Agreement. This Agreement shall become effective:
--------------------------------
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
Registration Statement or a post-effective amendment thereto to be declared
effective before the offering of the Shares may commence, when notification of
the effectiveness of the Registration Statement or such post-effective amendment
has been released by the Commission. Until such time as this Agreement shall
have become effective, it may be terminated by the Fund by notifying you or by
you, as Representatives of the several Underwriters, by notifying the Fund.
If any one or more of the Underwriters shall fail or refuse to
purchase Firm Shares which it or they have agreed to purchase hereunder and the
aggregate number of Firm Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Firm Shares, each non-defaulting Underwriter
shall be obligated, severally, in the proportion which the aggregate number of
Firm Shares set forth opposite its name in Schedule I hereto bears to the
aggregate number of Firm Shares set forth opposite the names of all non-
defaulting Underwriters or in such other proportion as you may specify in
accordance with Section 20 of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Master Agreement Among
Underwriters, to purchase Firm Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase. If any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Shares and arrangements satisfactory
to you and the Fund for the purchase of such Firm Shares by one or more non-
defaulting Underwriters or other party or parties approved by you and the Fund
are not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the Fund. In
any such case which does not result in termination of this Agreement, either you
or the Fund shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect to any such default of any such
Underwriter under this Agreement. The term "Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Fund,
purchases Firm Shares which a defaulting Underwriter agreed, but failed or
refused, to purchase.
32
Any notice under this Section 10 may be made by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be subject to
-----------------------------
termination in your absolute discretion, without liability on the part of any
Underwriter to the Fund or the Manager by notice to the Fund or the Manager if
prior to the Closing Date or any Option Closing Date (if different from the
Closing Date and then only as to the Additional Shares), as the case may be, (i)
trading in the Shares or securities generally on the NYSE, AMEX, Nasdaq National
Market or the Nasdaq Stock Market shall have been suspended or materially
limited, (ii) additional material governmental restrictions not in force on the
date of this Agreement have been imposed upon trading in securities generally or
a general moratorium on commercial banking activities in New York shall have
been declared by either Federal or state authorities or (iii) any outbreak or
material escalation of hostilities or other international or domestic calamity,
crisis or change in political, financial or economic conditions, occurs, the
effect of which is such as to make it, in your judgment, impracticable or
inadvisable to commence or continue the offering of the Shares at the offering
price to the public set forth on the cover page of the Prospectus or to enforce
contracts for the resale of the Shares by the Underwriters. Notice of such
termination may be given to the Fund or the Manager by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
12. Expenses. The Fund agrees to pay the following costs and expenses and
-------------
all other costs and expenses incident to the performance by the Fund of its
obligations hereunder: (a) the preparation, printing or reproduction, filing
(including, without limitation, the filing fees prescribed by the 1933 Act, the
1940 Act and the Rules and Regulations) and distribution of the Registration
Statement (including exhibits thereto), the Prospectus, each Prepricing
Prospectus and the 1940 Act Notification and all amendments or supplements to
any of them, (b) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of such copies of
the Registration Statement, the Prospectus, each Prepricing Prospectus, any
sales material and all amendments or supplements to any of them as may be
reasonably requested for use in connection with the offering and sale of the
Shares, (c) the preparation, printing, authentication, issuance and delivery of
certificates for the Shares, including any stamp taxes and transfer agent and
registrar fees payable in connection with the original issuance and sale of such
Shares, (d) the registrations or qualifications of the Shares for offer and sale
under the securities or Blue Sky laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriters relating to the preparation, printing or
reproduction and delivery of the preliminary and supplemental Blue Sky Memoranda
and such registration and qualification), (e) the fees and expenses of the
Fund's independent accountants, counsel for the Fund and of the transfer agent,
(f) the expenses of delivery to the Underwriters and dealers (including postage,
air freight and the cost of counting and packaging) of copies of the Prospectus,
the Prepricing Prospectus, any sales material and all amendments or supplements
to the Prospectus as may be requested for use in connection with the offering
and sale of the Shares, (g) the printing (or reproduction) and delivery of this
Agreement, any dealer agreements, the preliminary and supplemental Blue Sky
Memoranda and all other company-authorized agreements or other documents printed
(or
33
reproduced) and delivered in connection with the offering of the Shares, (h) the
filing fees and the fees and expenses of counsel for the Underwriters in
connection with any filings required to be made with the NASD and incurred with
respect to the review of the offering of the Shares by the NASD, (i) the
registration of the Shares under the 1934 Act and the listing of the Shares on
the AMEX, and (j) an amount not to exceed $______ payable on the Closing Date to
the Underwriters in partial reimbursement of their expenses (but not including
reimbursement for the cost of one tombstone advertisement in a newspaper that is
one-quarter of a newspaper page or less in size) in connection with the
offering.
Notwithstanding the foregoing, in the event that the sale of the Firm
Shares is not consummated pursuant to Section 2 hereof, the Manager will pay the
costs and expenses of the Fund set forth above in this Section 12 (a) through
(i), and reimbursements of Underwriter expenses in connection with the offering
shall be made in accordance with Section 5(k) hereof.
13. Information Furnished by the Underwriters. The statements set forth
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in the last sentence of the last paragraph of the front cover page in the
Prospectus, as well as, under the caption "Underwriting" in the Prospectus, the
names of the underwriters and numbers of Shares listed opposite such names in
the first paragraph, the last sentence of the second paragraph, the first
sentence of the tenth paragraph, the first sentence of the twelfth paragraph and
the sixteenth paragraph constitute the only information relating to any
Underwriter furnished to the Fund in writing by or on behalf of the Underwriters
through you as such information is referred to herein, expressly for use in the
Prospectus.
14. Miscellaneous. Except as otherwise provided in Sections 5, 10 and 11
------------------
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (a) if to the Fund or the Manager, c/o Nuveen
Investments at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇
▇. Berkshire or (b) if to you, as Representatives of the Underwriters, at the
office of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Fund, the Manager, their trustees, directors and officers and
the other controlling persons referred to in Section 8 hereof and their
respective successors and assigns to the extent provided herein and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" or the term "successors and assigns" as used in
this Agreement shall include a purchaser from any Underwriter of any of the
Shares in his status as such purchaser.
A copy of the Declaration of Trust of the Fund is on file with the
Secretary of State of The Commonwealth of Massachusetts. This Agreement has been
executed on behalf of the Fund by the vice-president of the Fund in such
capacity and not individually and the obligations of this Agreement are not
binding upon such officer, any of the trustees or the shareholders individually
but are binding only upon the assets and property of the Fund.
15. Applicable Law; Counterparts. This Agreement shall be governed by and
---------------------------------
construed in accordance with the laws of the State of New York.
34
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
35
Please confirm that the foregoing correctly sets forth the agreement among
the Fund and the Manager and the several Underwriters.
Very truly yours,
NUVEEN MASSACHUSETTS DIVIDEND
ADVANTAGE MUNICIPAL FUND
By: ___________________________
Title: Vice President
NUVEEN ADVISORY CORP.
By: ___________________________
Title: Vice President
36
Confirmed as of the date
first above written on
behalf of themselves and
the other several Underwriters
named in Schedule I hereto.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
NUVEEN INVESTMENTS
DEUTSCHE BANC ALEX. ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
PRUDENTIAL SECURITIES INCORPORATED
UBS WARBURG LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
AS REPRESENTATIVES OF THE SEVERAL UNDERWRITERS
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: ___________________________________
Title: Director
37
SCHEDULE I
Number of
Name of Underwriter Common Shares
------------------- -------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc......................
Nuveen Investments............................
Deutsche Banc Alex. ▇▇▇▇▇.....................
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc......................
Prudential Securities Incorporated............
UBS Warburg LLC...............................
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc...............