Exhibit (h)
▇▇▇ ▇▇▇▇▇▇ Dynamic Credit Opportunities Fund
[-] Common Shares of Beneficial Interest
Par Value $0.01 Per Share
UNDERWRITING AGREEMENT
June 26, 2007
UNDERWRITING AGREEMENT
June [-], 2007
UBS Securities LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
▇▇▇▇▇▇▇▇▇▇▇ & Co. Inc.
RBC Capital Markets Corporation
▇▇▇▇▇ Fargo Securities, LLC
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
BB&T Capital Markets, a division of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
as Representatives
c/o UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
▇▇▇ ▇▇▇▇▇▇ Dynamic Credit Opportunities Fund, a statutory trust
organized and existing under and by virtue of the laws of the State of Delaware
(the "Fund"), proposes to issue and sell to the underwriters named in Schedule A
annexed hereto (the "Underwriters") an aggregate of [-] common shares of
beneficial interest (the "Firm Shares"), par value $0.01 per share (the "Common
Shares"), of the Fund. In addition, solely for the purpose of covering
over-allotments, the Fund proposes to grant to the Underwriters the option to
purchase from the Fund up to an additional [-] Common Shares (the "Additional
Shares"). The Firm Shares and the Additional Shares are hereinafter collectively
sometimes referred to as the "Shares." The Shares are described in the
Prospectus which is defined below. UBS Securities LLC ("UBS Securities") and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇" and, together with UBS
Securities, the "Managing Representatives") will act as managing representatives
for the Underwriters.
The Fund has filed, in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations thereunder (collectively
called the "Securities Act"), and with the provisions of the Investment Company
Act of 1940, as amended, and the rules and regulations thereunder (collectively
called the "Investment Company Act"), with the Securities and Exchange
Commission (the "Commission") a registration statement on Form N-2 (File Nos.
333-141816 and 811-22043), including a prospectus and a statement of additional
information, relating to the Shares. In addition, the Fund has filed a
Notification of Registration on Form N-8A (the "Notification") pursuant to
Section 8 of the Investment Company Act.
Except where the context otherwise requires, "Preliminary Prospectus,"
as used herein, means each prospectus (including the statement of additional
information incorporated therein by reference) included in such registration
statement, or amendment thereof, before it became effective under the Securities
Act and any prospectus (including the statement of additional information
incorporated therein by reference) filed with the Commission by the Fund with
the consent of the Managing Representatives on behalf of the Underwriters,
pursuant to Rule 497(a) under the Securities Act.
Except where the context otherwise requires, "Registration Statement,"
as used herein, means the registration statement, as amended at the time of such
registration statement's effectiveness for purposes of Section 11 of the
Securities Act, as such section applies to the respective Underwriters (the
"Effective Time"), including (i) all documents filed as a part thereof or
incorporated by reference therein, (ii) any information contained in a
prospectus subsequently filed with the Commission pursuant to Rule 497 under the
Securities Act and deemed to be part of the registration statement at the
Effective Time pursuant to Rule 430A under the Securities Act, and (iii) any
registration statement filed to register the offer and sale of Shares pursuant
to Rule 462(b) under the Securities Act.
Except where the context otherwise requires, "Prospectus," as used
herein, means the final prospectus (including the statement of additional
information incorporated therein by reference) as filed by the Fund with the
Commission (i) pursuant to Rule 497(h) under the Securities Act on or before the
second business day after the date hereof (or such earlier time as may be
required under the Securities Act) or (ii) pursuant to Rule 497(b) under the
Securities Act on or before the fifth business day after the date hereof (or
such earlier time as may be required under the Securities Act), or, if no such
filing is required, the final prospectus (including the final statement of
additional information) included in the Registration Statement at the Effective
Time, in each case in the form furnished by the Fund to you for use by the
Underwriters and by dealers in connection with the confirmation of sales in the
offering of the Shares.
"Pricing Prospectus" means the Preliminary Prospectus that is included
in the Registration Statement, or otherwise furnished by the Fund to you for use
by the Underwriters and by dealers in connection with the offering of the
Shares, immediately prior to the Applicable Time (as defined below) and any
amendment or supplement to such Preliminary Prospectus from the Applicable Time
through the Closing Time (as defined herein below).
"Pricing Information" means the information relating to (i) the number
of Shares issued and (ii) the offering price of the Shares included on the cover
page of the Prospectus dependent upon such information.
"Disclosure Package" means the Pricing Prospectus taken together with
the Pricing Information.
"Sales Materials" means those advertising materials, sales literature
or other promotional materials or documents, if any, constituting an
advertisement pursuant to Rule 482 under the Securities Act authorized or
prepared by the Fund or authorized or prepared on behalf of the Fund by the
Adviser (as defined below) or any representative thereof for use in connection
with the public offering or sale of the Shares; provided, however, that Sales
Materials do not include any slides, tapes or other materials or documents that
constitute a "written communication" (as defined in Rule 405 under the
Securities Act) used in connection with a "road show" or a "bona fide electronic
road show" (each as defined in Rule 433 under the Securities Act) related to the
offering of Shares contemplated hereby (collectively, "Road Show Materials").
"Applicable Time" means the time as of which this Underwriting
Agreement was entered into, which shall be [-] p.m. (New York City time) on the
date of this Underwriting Agreement (or such other time as is agreed to by the
Fund and the Managing Representatives on behalf of the Underwriters).
The Fund has prepared and filed, in accordance with Section 12 of
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively, the "Exchange Act"), a registration statement (as
amended, the "Exchange Act Registration Statement") on Form 8-A (File No.
001-33545) under the Exchange Act to register, under Section 12(b) of the
Exchange Act, the class of securities consisting of the Common Shares.
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▇▇▇ ▇▇▇▇▇▇ Asset Management, a Delaware statutory trust (the
"Adviser"), will act as the Fund's investment adviser pursuant to an Investment
Advisory Agreement by and between the Fund and the Adviser, dated as of [-],
2007 (the "Investment Advisory Agreement"). Avenue Europe International
Management, L.P., a [-] limited partnership (the "Subadviser") will act as the
Fund's investment sub-adviser pursuant to an Investment Subadvisory Agreement
among the Adviser and the Subadviser dated as of [-], 2007 (the "Subadvisory
Agreement"). State Street Bank and Trust Company will act as the custodian (the
"Custodian") of the Fund's cash and portfolio assets pursuant to the Custodian
Agreement, dated as of August 1, 1997, as amended May 24, 2001 (the "Custodian
Agreement"). Computershare Shareholder Services, Inc. and Computershare Trust
Company, N.A. will act together as the Fund's transfer agent, registrar, and
dividend paying agent (the "Transfer Agent") pursuant to a Transfer Agency and
Service Agreement, dated as of January 1, 2002 (the "Transfer Agency
Agreement"). The Adviser and UBS Securities LLC have entered into a Shareholder
Servicing Agreement dated June [-], 2007 (the "Shareholder Servicing
Agreement"). The Adviser has also entered into a Marketing and Structuring Fee
Agreement with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ dated June [-], 2007 (the "Marketing and
Structuring Fee Agreement"). The Adviser has also entered into an Incentive Fee
Agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. dated June [-], 2007 (the
"▇▇▇▇▇▇▇ ▇▇▇▇▇ Incentive Fee Agreement"). The Adviser has also entered into an
Incentive Fee Agreement with ▇▇▇▇▇▇▇▇▇▇▇ & Co. Inc. dated June [-], 2007 (the
"▇▇▇▇▇▇▇▇▇▇▇ Incentive Fee Agreement" and, together with the Shareholder
Servicing Agreement, the Marketing and Structuring Fee Agreement and the ▇▇▇▇▇▇▇
▇▇▇▇▇ Incentive Fee Agreement, the "Shareholder Servicing Agreements"). The Fund
has also entered into a Chief Compliance Officer Agreement with ▇▇▇▇ ▇▇▇▇▇▇▇▇
dated July 15, 2004 (the "CCO Agreement"). The Fund and the Adviser have entered
into a Subscription Agreement dated as of May 10, 2007 (the "Subscription
Agreement"). The Fund has entered into an Accounting Services Agreement with the
Adviser, dated May 21, 1997 (the "Accounting Agreement"). In addition, the Fund
has adopted a dividend reinvestment plan (the "Dividend Reinvestment Plan")
pursuant to which holders of Shares may have their dividends automatically
reinvested in additional Common Shares of the Fund unless they elect to receive
such dividends in cash.
As used in this Underwriting Agreement, "business day" shall mean a day
on which the New York Stock Exchange (the "NYSE") is open for trading. The terms
"herein," "hereof," "hereto," "hereinafter" and similar terms, as used in this
Underwriting Agreement, shall in each case refer to this Underwriting Agreement
as a whole and not to any particular section, paragraph, sentence or other
subdivision of this Underwriting Agreement. The term "or," as used herein, is
not exclusive.
The Fund, the Adviser and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the warranties and representations
and subject to the terms and conditions herein set forth, the Fund
agrees to sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the
Fund the aggregate number of Firm Shares set forth opposite the name of
such Underwriter in Schedule A attached hereto in each case at a
purchase price of $19.10 per Share. The Fund is advised that the
Underwriters intend (i) to make a public offering of their respective
portions of the Firm Shares as soon after the Effective Time as is
advisable and (ii) initially to offer the Firm Shares upon the terms
set forth in the Prospectus. The Underwriters may from time to time
increase or decrease the public offering price after the initial public
offering to such extent as they may determine.
In addition, the Fund hereby grants to the several Underwriters the
option to purchase, and upon the basis of the warranties and representations and
subject to the terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally and not jointly, from the Fund, ratably in
accordance with the number of Firm Shares to be purchased by each of them, all
or a portion of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of
3
the Firm Shares, at the same purchase price per Share to be paid by the
Underwriters to the Fund for the Firm Shares. This option may be exercised by
the Managing Representatives on behalf of the several Underwriters at any time
and from time to time on or before the forty-fifth (45th) day following the date
hereof, by written notice to the Fund. Such notice shall set forth the aggregate
number of Additional Shares as to which the option is being exercised, and the
date and time when the Additional Shares are to be delivered (such date and time
being herein referred to as the "Additional Shares Closing Time"); provided,
however, that the Additional Shares Closing Time shall not be earlier than the
Firm Shares Closing Time (as defined below) nor earlier than the second business
day after the date on which the option shall have been exercised nor later than
the tenth business day after the date of such notice. The number of Additional
Shares to be sold to each Underwriter shall be the number which bears the same
proportion to the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such Underwriter on
Schedule A hereto bears to the total number of Firm Shares (subject, in each
case, to such adjustment as the Representatives may determine to eliminate
fractional shares).
2. Payment and Delivery. Payment of the purchase price for the Firm Shares
shall be made by the Underwriters to the Fund by Federal Funds wire
transfer, against delivery of the certificates for the Firm Shares to
the Representatives through the facilities of the Depository Trust
Company for the respective accounts of the Underwriters. Such payment
and delivery shall be made at a time mutually agreed upon by the
parties on the third business day following the date of this
Underwriting Agreement (unless another date shall be agreed to by the
Fund and the Managing Representatives on behalf of the Underwriters).
The time at which such payment and delivery are actually made is
hereinafter sometimes called the "Firm Shares Closing Time."
Certificates for the Firm Shares shall be delivered to the
Representatives in definitive form in such names and in such
denominations as the Representatives shall specify on the second
business day preceding the Firm Shares Closing Time. For the purpose of
expediting the checking of the certificates for the Firm Shares by the
Representatives, the Fund agrees to make such certificates available to
the Representatives for such purpose at least one full business day
preceding the Firm Shares Closing Time.
Payment of the purchase price for the Additional Shares shall be made
at the Additional Shares Closing Time in the same manner and at the same office
as the payment for the Firm Shares. Certificates for the Additional Shares shall
be delivered to the Representatives in definitive form in such names and in such
denominations as the Representatives shall specify no later than the second
business day preceding the Additional Shares Closing Time. For the purpose of
expediting the checking of the certificates for the Additional Shares by the
Representatives, the Fund agrees to make such certificates available to the
Representatives for such purpose at least one full business day preceding the
Additional Shares Closing Time. The Firm Shares Closing Time and the Additional
Shares Closing Time are sometimes referred to herein as the "Closing Times."
3. Representations and Warranties of the Fund and the Adviser. Each of the
Fund and the Adviser jointly and severally represents and warrants to
each Underwriter as of the date of this Underwriting Agreement, as of
the Firm Shares Closing Time and as of each Additional Shares Closing
Time, if any, as follows:
(a) (i) (A) the Registration Statement has heretofore become
effective under the Securities Act or, with respect to any
registration statement to be filed to register the offer and
sale of Shares pursuant to Rule 462(b) under the Securities
Act, will be filed with the Commission and become effective
under the Securities Act no later than 10:00 P.M., New York
City time, on the date of determination of the public offering
price for the Shares; (B) no stop order of the Commission
preventing or suspending the use of any
4
Preliminary Prospectus or Sales Materials or of the Prospectus
or the effectiveness of the Registration Statement has been
issued, and no proceedings for such purpose have been
instituted or, to the Fund's knowledge, are contemplated by
the Commission; and (C) the Exchange Act Registration
Statement has become effective as provided in Section 12 of
the Exchange Act;
(ii) (A) the Registration Statement complied at the Effective
Time, complies as of the date hereof and will comply, as amended or
supplemented, at the Firm Shares Closing Time, at each Additional
Shares Closing Time, if any, and at each and any time of a sale of
Shares by an Underwriter during the period in which a prospectus is
required by the Securities Act to be delivered in connection with any
sale of Shares, in all material respects, with the requirements of the
Securities Act and the Investment Company Act; (B) each Preliminary
Prospectus and the Prospectus complied, at the time it was filed with
the Commission, and the Prospectus complies as of the date hereof and,
as amended or supplemented, at the Firm Shares Closing Time, each
Additional Shares Closing Time, if any, and at all times during which a
prospectus is required by the Securities Act to be delivered in
connection with any sale of Shares, will comply, in all material
respects with the requirements of the Securities Act (including,
without limitation, Section 10(a) of the Securities Act) and the
Investment Company Act; and (C) each of the Sales Materials complied,
at the time it was first used in connection with the public offering of
the Shares, and complies as of the date hereof, in all material
respects with the requirements of the Securities Act (including,
without limitation, Rule 482 thereunder), the Investment Company Act
and the applicable rules and interpretations of the National
Association of Securities Dealers, Inc. (the "NASD");
(iii) (A) (1) the Registration Statement as of the Effective
Time did not, (2) the Registration Statement (including any
post-effective amendment thereto declared or deemed to be effective by
the Commission) as of the date hereof does not, and (3) the
Registration Statement (including any post-effective amendment thereto
declared or deemed to be effective by the Commission), as of the Firm
Shares Closing Time and each Additional Shares Closing Time, if any,
will not, in each case, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; (B) at no time
during the period that begins as of the Applicable Time and ends at the
Firm Shares Closing Time did or will the Disclosure Package, as then
amended or supplemented, include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; (C) at no time during the period that begins
at the time each of the Sales Materials was first used in connection
with the public offering of the Shares and ends at the Applicable Time
did any of the Sales Materials (as materials deemed to be a prospectus
under Section 10(b) of the Securities Act pursuant to Rule 482 under
the Securities Act), as then amended or supplemented, include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and (D) at no
time during the period that begins on the earlier of the date of the
Prospectus and the date the Prospectus is filed with the Commission and
ends at the latest of the Firm Shares Closing Time, the latest
Additional Shares Closing Time, if any, and the end of the period
during which a prospectus is required by the Securities Act to be
delivered in connection with any sale of Shares did or will the
Prospectus, as then amended or supplemented, include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that each of the Fund and the Adviser makes no representation
or warranty with respect to any statement contained in the Registration
Statement, the Disclosure Package or the Prospectus in reliance upon
and in conformity with
5
information concerning an Underwriter and furnished in writing by or on
behalf of such Underwriter through the Managing Representatives to the
Fund expressly for use in the Registration Statement, the Disclosure
Package or the Prospectus as described in Section 9(f) hereof; and
provided, further that if any event occurs during any of the periods
referred to in clauses (B), (C) or (D) of this Section 3(a)(iii) as a
result of which it is necessary to amend or supplement the Prospectus,
the Disclosure Package or the Sales Materials, as applicable, in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading in any material respect, and the
Disclosure Package, the Sales Materials or the Prospectus, as
applicable, is amended or supplemented in connection therewith in
accordance with Section 5(d) of this Underwriting Agreement, such
amendment or supplement shall be deemed, for purposes of this Section
3(a)(iii), to have been made contemporaneously with the occurrence of
such event.
(b) (i) The Fund has been duly formed, is validly existing as a
statutory trust under the laws of State of Delaware, with full
power and authority to conduct all the activities conducted by
it, to own or lease all assets owned or leased by it and to
conduct its business as described in the Registration
Statement, the Pricing Prospectus and the Prospectus; (ii) the
Fund is duly licensed and qualified to do business and in good
standing in each jurisdiction in which its ownership or
leasing of property or its conducting of business requires
such qualification, except where the failure to be so
qualified or be in good standing would not have a material
adverse effect on the Fund; (iii) the Fund owns, possesses or
has obtained and currently maintains all governmental
licenses, permits, consents, orders, approvals and other
authorizations, whether foreign or domestic, necessary to
carry on its business as contemplated in the Pricing
Prospectus and the Prospectus, except those the absence of
which, either individually or in the aggregate, would not have
a material adverse effect on the Fund; and (iv) the Fund has
no subsidiaries.
(c) The outstanding and authorized capitalization of the Fund is
as set forth in the Registration Statement, the Pricing
Prospectus and the Prospectus. The Common Shares conform in
all material respects to the description of them in the
Pricing Prospectus and the Prospectus. All the outstanding
Common Shares have been duly authorized and are validly
issued, fully paid and nonassessable (except as described in
the Registration Statement, the Pricing Prospectus and the
Prospectus). The Shares to be issued and delivered to and paid
for by the Underwriters in accordance with this Underwriting
Agreement against payment therefor as provided by this
Underwriting Agreement have been duly authorized and when
issued and delivered to the Underwriters will have been
validly issued and will be fully paid and nonassessable
(except as described in the Registration Statement, the
Pricing Prospectus and the Prospectus). No person is entitled
to any preemptive or other similar rights with respect to the
issuance of the Shares.
(d) The Fund is duly registered with the Commission under the
Investment Company Act as a diversified, closed-end management
investment company, and, subject to the filing of any final
amendment to the Registration Statement (a "Final Amendment"),
if not already filed, all action under the Securities Act and
the Investment Company Act, as the case may be, necessary to
make the public offering and consummate the sale of the Shares
as provided in this Underwriting Agreement has or will have
been taken by the Fund.
(e) The Fund has full power and authority to enter into each of
this Underwriting Agreement, the Investment Advisory
Agreement, the Custodian Agreement, the Transfer Agency
Agreement, the Accounting Agreement, the CCO Agreement and the
Subscription
6
Agreement (collectively, the "Fund Agreements") and to perform
all of the terms and provisions hereof and thereof to be
carried out by it and (i) each Fund Agreement has been duly
and validly authorized, executed and delivered by or on behalf
of the Fund, (ii) each Fund Agreement does not violate in any
material respect any of the applicable provisions of the
Investment Company Act or the Investment Advisers Act of 1940,
as amended, and the rules and regulations thereunder
(collectively called the "Advisers Act"), as the case may be,
and (iii) assuming due authorization, execution and delivery
by the other parties thereto, each Fund Agreement constitutes
the legal, valid and binding obligation of the Fund
enforceable in accordance with its terms, (A) subject, as to
enforcement, to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally, whether
statutorily or decisional, and to general equitable principles
(regardless of whether enforcement is sought in a proceeding
in equity or at law) and (B) except as rights to indemnity
thereunder may be limited by federal or state securities laws.
(f) None of (i) the execution and delivery by the Fund of the Fund
Agreements, (ii) the issue and sale by the Fund of the Shares
as contemplated by this Underwriting Agreement and (iii) the
performance by the Fund of its obligations under any of the
Fund Agreements or consummation by the Fund of the other
transactions contemplated by the Fund Agreements conflicts
with or will conflict with, or results or will result in a
breach of, (x) the Declaration of Trust or the By-laws of the
Fund, or (y) any material agreement or instrument to which the
Fund is a party or by which the Fund is bound, or (z) any law,
rule or regulation, order of any court, governmental
instrumentality, securities exchange or association or
arbitrator, whether foreign or domestic, applicable to the
Fund (which conflict with or breach in any such case (y),
either individually or in the aggregate, would have a material
adverse effect on the Fund), other than state securities or
"blue sky" laws applicable in connection with the purchase and
distribution of the Shares by the Underwriters pursuant to
this Underwriting Agreement.
(g) The Fund is not currently in material breach of, or in
material default under, any material written agreement or
instrument to which it is a party or by which it or its
property is bound or affected.
(h) No person has any right to the registration of any securities
of the Fund because of the filing of the registration
statement.
(i) No consent, approval, authorization or order of any court or
governmental agency or body or securities exchange or
association, whether foreign or domestic, is required by the
Fund for the consummation by the Fund of the transactions to
be performed by the Fund or the performance by the Fund of all
the terms and provisions to be performed by or on behalf of it
in each case as contemplated in the Fund Agreements, except
such as (i) the absence of which, either individually or in
the aggregate, would not have a material adverse effect on the
Fund, (ii) have been obtained under the Securities Act, the
Exchange Act, the Investment Company Act, or the Advisers Act,
and (iii) may be required by the NYSE, the Chicago Stock
Exchange, NASD, or under state securities or "blue sky" laws,
in connection with the purchase and distribution of the Shares
by the Underwriters pursuant to this Underwriting Agreement.
(j) The Shares are duly authorized for listing, subject to
official notice of issuance, on the NYSE and the Chicago Stock
Exchange and the Notification has become effective.
7
(k) Deloitte & Touche LLP, whose report appears in the Prospectus,
is an independent registered public accounting firm with
respect to the Fund as required by the Securities Act and the
Investment Company Act.
(l) The statement of assets and liabilities included in the
Registration Statement, the Pricing Prospectus and the
Prospectus presents fairly in all material respects, in
accordance with generally accepted accounting principles in
the United States applied on a consistent basis, the financial
position of the Fund as of the date indicated.
(m) The Fund will maintain a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing
assets through an asset reconciliation procedure or otherwise
at reasonable intervals and appropriate action is taken with
respect to any differences.
(n) Since the date as of which information is given in the
Registration Statement, the Pricing Prospectus and the
Prospectus, except as otherwise stated therein, (i) there has
been no material adverse change in the condition, financial or
otherwise, business prospects, properties, net assets or
results of operations of the Fund (other than changes
resulting from changes in the equity markets generally),
whether or not arising in the ordinary course of business,
(ii) there have been no transactions entered into by the Fund
other than those in the ordinary course of its business or
incident to its organization and (iii) there has been no
dividend or distribution of any kind declared, paid or made on
any class of the Fund's capital shares.
(o) There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other
governmental agency or body, foreign or domestic, now pending,
or, to the knowledge of the Fund, threatened against or
affecting the Fund, which (i) might result in any material
adverse change in the condition, financial or otherwise,
business affairs or business prospects of the Fund or might
materially adversely affect the properties or assets of the
Fund or (ii) is of a character required to be described in the
Registration Statement, the Pricing Prospectus or the
Prospectus and is not so described as required; and there are
no contracts, franchises or other documents that are of a
character required to be described in, or that are required to
be filed as exhibits to, the Registration Statement that have
not been described or filed as required.
(p) Except for stabilization transactions conducted by the
Underwriters, and except for tender offers, Share repurchases
and the issuance or purchase of Shares pursuant to the Fund's
Dividend Reinvestment Plan effected following the date on
which the distribution of the Shares is completed in
accordance with the policies of the Fund as set forth in the
Pricing Prospectus or the Prospectus, the Fund has not taken
and will not take, directly or indirectly, any action designed
or which might be reasonably expected to cause or result in,
or which will constitute, stabilization or manipulation of the
price of the Common Shares in violation of applicable federal
securities laws.
8
(q) 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 (the "Code").
(r) The Fund has not distributed and, prior to the later to occur
of the (i) date of the last Closing Time and (b) completion of
the distribution of the Shares, will not distribute any
offering material in connection with the public offering or
sale of the Shares other than the Registration Statement, the
Disclosure Package, the Sales Materials and the Prospectus.
(s) To the knowledge of the Fund or the Adviser after due inquiry,
there are no Sales Materials other than the definitive client
brochure and the broker fact sheet, which were filed with the
NASD on May [-], 2007; and no Road Show Materials authorized
or prepared by the Fund or authorized or prepared on behalf of
the Fund by the Adviser, the Subadviser or any representative
thereof for use in connection with the public offering or sale
of the Shares nor any Sales Materials contained or contains
any untrue statement of a material fact or omitted or omits to
state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(t) Except as disclosed in the Registration Statement, the Pricing
Prospectus and the Prospectus (or any amendment or supplement
to any of them), to the Fund's or the Adviser's knowledge, as
the case may be, after due inquiry, no trustee of the Fund is
an "interested person" (as defined in the Investment Company
Act) of the Fund or an "affiliated person" (as defined in the
Investment Company Act) of any Underwriter listed in Schedule
A hereto.
In addition, any certificate signed by any officer of the Fund and
delivered to the Underwriters or counsel for the Underwriters in connection with
the offering of the Share shall be deemed to be a representation and warranty by
the Fund as to matters covered thereby, to each Underwriter.
4. Representations and Warranties of the Adviser. The Adviser represents
to each Underwriter as of the date of this Underwriting Agreement, as
of the Firm Shares Closing Time and as of each Additional Shares
Closing Time, if any, as follows:
(a) The Adviser has been duly formed, is validly existing as a
statutory trust under the laws of the State of Delaware with
full power and authority to conduct all of the activities
conducted by it, to own or lease all of the assets owned or
leased by it and to conduct its business as described in the
Registration Statement, the Pricing Prospectus and the
Prospectus, and the Adviser is duly licensed and qualified to
do business and in good standing in each jurisdiction in which
it is required to be so qualified; and the Adviser owns,
possesses or has obtained and currently maintains all
governmental licenses, permits, consents, orders, approvals
and other authorizations, whether foreign or domestic,
necessary to carry on its business as contemplated in the
Registration Statement, the Pricing Prospectus and the
Prospectus.
(b) The Adviser is (i) duly registered as an investment adviser
under the Advisers Act and (ii) not prohibited by the Advisers
Act or the Investment Company Act from acting as the
investment adviser for the Fund as contemplated by the
Investment Advisory Agreement, the Subadvisory Agreement, the
Registration Statement, the Pricing Prospectus and the
Prospectus.
9
(c) The Adviser has full power and authority to enter into each of
this Underwriting Agreement, the Investment Advisory
Agreement, the Subadvisory Agreement, the Subscription
Agreement and the Shareholder Servicing Agreements
(collectively, the "Adviser Agreements"), and to carry out all
the terms and provisions hereof and thereof to be carried out
by it; and each Adviser Agreement has been duly and validly
authorized, executed and delivered by the Adviser; none of the
Adviser Agreements violates any of the applicable provisions
of the Investment Company Act or the Advisers Act; and
assuming due authorization, execution and delivery by the
other parties thereto, each Adviser Agreement constitutes a
legal, valid and binding obligation of the Adviser,
enforceable in accordance with its terms, (i) subject, as to
enforcement, to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and to general
equitable principles (regardless of whether enforcement is
sought in a proceeding in equity or at law) and (ii) except as
rights to indemnity thereunder may be limited by federal or
state securities laws.
(d) Neither (i) the execution and delivery by the Adviser of any
Adviser Agreement nor (ii) the consummation by the Adviser of
the transactions contemplated by, or the performance of its
obligations under any Adviser Agreement conflicts or will
conflict with, or results or will result in a breach of, the
Declaration of Trust or By-Laws of the Adviser or any
agreement or instrument to which the Adviser is a party or by
which the Adviser is bound, or any law, rule or regulation, or
order of any court, governmental instrumentality, securities
exchange or association or arbitrator, whether foreign or
domestic, applicable to the Adviser.
(e) No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or
association, whether foreign or domestic, is required for the
consummation of the transactions contemplated in, or the
performance by the Adviser of its obligations under, any
Adviser Agreement, as the case may be, except such as (i) have
been obtained under the Securities Act, the Investment Company
Act, or the Advisers Act, and (ii) may be required by the
NYSE, the Chicago Stock Exchange, or under state securities or
"blue sky" laws, in connection with the purchase and
distribution of the Shares by the Underwriters pursuant to
this Underwriting Agreement.
(f) The description of the Adviser and its business and the
statements attributable to the Adviser in the Registration
Statement, the Pricing Prospectus and the Prospectus comply
with the requirements of the Securities Act and the Investment
Company Act and do not contain any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements
therein (in the case of the Pricing Prospectus and the
Prospectus in light of the circumstances in which they were
made) not misleading.
(g) Except as set forth in the Registration Statement, the Pricing
Prospectus and the Prospectus, there is no action, suit or
proceeding before or by any court, commission, regulatory
body, administrative agency or other governmental agency or
body, foreign or domestic, now pending or, to the knowledge of
the Adviser, threatened against or affecting the Adviser
except such which (i) is not of a nature required to be
disclosed in the Registration Statement, the Pricing
Prospectus or the Prospectus and (ii) if determined adversely
would not result in any material adverse change in the
condition, financial or otherwise, business affairs or
business prospects of the Adviser or the ability of the
Adviser to fulfill its respective obligations under any
Adviser Agreement.
10
(h) Except for stabilization activities conducted by the
Underwriters and except for tender offers, Share repurchases
and the issuance or purchase of Shares pursuant to the Fund's
Dividend Reinvestment Plan effected following the date on
which the distribution of the Shares is completed in
accordance with the policies of the Fund as set forth in the
Pricing Prospectus and the Prospectus, the Adviser has not
taken and will not take, directly or indirectly, any action
designed, or which might 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
applicable federal securities laws.
(i) In the event that the Fund or the Adviser has made available
any Road Show Materials or promotional materials (other than
the Sales Materials) by means of an Internet web site or
similar electronic means such as to constitute a bona fide
electronic road show, the Adviser has installed and maintained
pre-qualification and password-protection or similar
procedures which are designed and reasonably expected to
effectively prohibit access to such Road Show Materials or
promotional materials by persons other than qualified
broker-dealers and registered representatives thereof.
In addition, any certificate signed by any officer of the Adviser and
delivered to the Underwriters or counsel for the Underwriters in
connection with the offering of the Shares shall be deemed to be a
representation and warranty by the Adviser as to matters covered
thereby, to each Underwriter.
5. Agreements of the Parties.
(a) If the registration statement relating to the Shares has not
yet become effective, the Fund will promptly file a Final
Amendment, if not previously filed, with the Commission, and
will use its commercially reasonable best efforts to cause
such registration statement to become effective and, as soon
as the Fund is advised, will advise the Managing
Representatives when the Registration Statement or any
amendment thereto has become effective. If it is necessary for
a post-effective amendment to the Registration Statement, or a
Registration Statement under Rule 462(b) under the Securities
Act, to be filed with the Commission and become effective
before the Shares may be sold, the Fund will use its
commercially reasonable best efforts to cause such
post-effective amendment or such Registration Statement to be
filed and become effective as soon as possible, and the Fund
will advise you promptly and, if requested by you, will
confirm such advice in writing, (i) when such post-effective
amendment or such Registration Statement has become effective.
If the Registration Statement has become effective and the
Prospectus contained therein omits certain information at the
time of effectiveness pursuant to Rule 430A under the
Securities Act, the Fund will file a 430A Prospectus pursuant
to Rule 497(h) under the Securities Act as promptly as
practicable, but no later than the second business day
following the earlier of the date of the determination of the
offering price of the Shares or the date the Prospectus is
first used after the Effective Time. If the Registration
Statement has become effective and the Prospectus contained
therein does not so omit such information, the Fund will file
a Prospectus pursuant to Rule 497(b) or a certification
pursuant to Rule 497(j) under the Securities Act as promptly
as practicable, but no later than the fifth business day
following the date of the later of the Effective Time or the
commencement of the public offering of the Shares after the
Effective Time. In either case, the Fund will provide the
Managing Representatives satisfactory evidence of the filing.
The Fund will not file with the Commission any Prospectus or
any other amendment (except any post-effective amendment which
is filed with the Commission after the later of (x) one year
from the date of this Underwriting Agreement or (y) the
11
date on which distribution of the Shares is completed) or
supplement to the Registration Statement or the Prospectus
unless a copy has first been submitted to the Managing
Representatives a reasonable time before its filing and the
Managing Representatives have not objected to it in writing
within a reasonable time after receiving the copy.
(b) For the period of three years from the date hereof, the Fund
will advise the Managing Representatives promptly (i) of the
issuance by the Commission of any order in respect of the Fund
(other than an effectiveness order with respect to an offering
of preferred shares of beneficial interest), or in respect of
the Adviser, which relates to the Fund and would materially
adversely affect the ability of the Adviser to perform its
respective obligations to the Fund, (ii) of the initiation or
threatening in writing of any proceedings for, or receipt by
the Fund of any written notice with respect to, any suspension
of the qualification of the Shares for sale in any
jurisdiction or the issuance of any order by the Commission
suspending the effectiveness of the Registration Statement,
(iii) of receipt by the Fund, or any representative or
attorney of the Fund, of any other communication from the
Commission relating in any material way to the Fund (other
than communications with respect to an offering of preferred
shares of beneficial interest), the Registration Statement,
the Notification, any Preliminary Prospectus, the Sales
Materials, the Prospectus or to the transactions contemplated
by this Underwriting Agreement and (iv) the issuance by any
court, regulatory body, administrative agency or other
governmental agency or body, whether foreign or domestic, of
any order, ruling or decree, or the threat in writing to
initiate any proceedings with respect thereto, regarding the
Fund, which relates in any material way to the Fund or any
material arrangements or proposed material arrangements
involving the Fund. The Fund will use its best efforts to
prevent the issuance of any order suspending the effectiveness
of the Registration Statement and, if any such order is
issued, to obtain its lifting as soon as practicable.
(c) If not delivered prior to the date of this Underwriting
Agreement, the Fund will deliver to the Managing
Representatives, without charge, a signed copy of the
Registration Statement, the Exchange Act Registration
Statement and the Notification and of any amendments (except
any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of
this Underwriting Agreement or (y) the date on which the
distribution of the Shares is completed) to either the
Registration Statement, the Exchange Act Registration
Statement or the Notification (including all exhibits filed
with any such document) and as many conformed copies of the
Registration Statement and any amendments thereto (except any
post-effective amendment which is filed with the Commission
after the later of (x) one year from the date of this
Underwriting Agreement or (y) the date on which the
distribution of the Shares is completed) (excluding exhibits)
as the Managing Representatives may reasonably request.
(d) During such period as a prospectus is required by law to be
delivered by an underwriter or a dealer, the Fund will
deliver, without charge, to the Representatives, the
Underwriters and any dealers, at such office or offices as the
Representatives may designate, as many copies of the
Prospectus as the Representatives may reasonably request, and,
if any event occurs during such period as a result of which it
is necessary to amend or supplement the Prospectus, in order
to make the statements therein, in light of the circumstances
under which they were made, not misleading in any material
respect, or if during such period it is necessary to amend or
supplement the Prospectus to comply with the Securities Act or
the Investment Company Act, the Fund promptly will prepare,
submit to the Managing Representatives, file with the
Commission and deliver, without
12
charge, to the Underwriters and to dealers (whose names and
addresses the Managing Representatives will furnish to the
Fund) to whom Shares may have been sold by the Underwriters,
and to other dealers on request, amendments or supplements to
the Prospectus so that the statements in such Prospectus, as
so amended or supplemented, will not, in light of the
circumstances under which they were made, be misleading in any
material respect and will comply with the Securities Act and
the Investment Company Act. Delivery by the Underwriters of
any such amendments or supplements to the Prospectus will not
constitute a waiver of any of the conditions in Section 6
hereof.
(e) The Fund will make generally available to holders of the
Fund's securities, as soon as practicable but in no event
later than the last day of the 18th full calendar month
following the calendar quarter in which the date of the
Effective Time falls, an earnings statement, if applicable,
satisfying the provisions of the last paragraph of Section
11(a) of the Securities Act and, at the option of the Fund,
Rule 158 under the Securities Act.
(f) If the transactions contemplated by this Underwriting
Agreement are consummated, the Fund shall pay all costs and
expenses incident to the performance of the obligations of the
Fund under this Underwriting Agreement (to the extent such
expenses do not, in the aggregate, exceed $0.04 per Share),
including but not limited to costs and expenses of or relating
to (i) the preparation, printing and filing of the
Registration Statement and exhibits to it, each Preliminary
Prospectus, the Prospectus and all amendments and supplements
thereto, (ii) the issuance of the Shares and the preparation
and delivery of certificates for the Shares, (iii) the
registration or qualification of the Shares for offer and sale
under the securities or "blue sky" laws of the jurisdictions
referred to in the foregoing paragraph, including the
reasonable fees and disbursements of counsel, if any, for the
Underwriters in that connection, and the preparation and
printing of any preliminary and supplemental "blue sky"
memoranda, (iv) the furnishing (including costs of design,
production, shipping and mailing) to the Underwriters and
dealers of copies of each Preliminary Prospectus relating to
the Shares, the Sales Materials, the Prospectus, and all
amendments or supplements to the Prospectus, and of the other
documents required by this Section to be so furnished, (v) the
filing requirements of the NASD, in connection with its review
of the financing, including filing fees and the fees,
disbursements and other charges of counsel for the
Underwriters in that connection, (vi) all transfer taxes, if
any, with respect to the sale and delivery of the Shares by
the Fund to the Underwriters, (vii) the listing of the Shares
on the NYSE and the Chicago Stock Exchange and (viii) the
transfer agent for the Shares. To the extent the foregoing
costs and expenses incident to the performance of the
obligations of the Fund under this Underwriting Agreement
exceed, in the aggregate, $0.04 per Share, the Adviser or an
affiliate will pay all such excess costs and expenses. The
Fund and the Adviser may otherwise agree among themselves as
to the payment of the foregoing expenses, whether or not the
transactions contemplated by this Underwriting Agreement are
consummated, provided, however, that in no event shall the
Underwriters be obligated to pay any of the foregoing
expenses.
(g) If the transactions contemplated by this Underwriting
Agreement are not consummated, except as otherwise provided
herein, no party will be under any liability to any other
party, except that (i) if this Underwriting Agreement is
terminated by (x) the Fund or the Adviser pursuant to any of
the provisions hereof or (y) by the Representatives or the
Underwriters because of any inability, failure or refusal on
the part of the Fund or the Adviser to comply with any
material terms of this Underwriting Agreement or because any
of the conditions in Section 6 are not satisfied, the Adviser
or the Adviser's affiliates
13
and the Fund, jointly and severally, will reimburse the
Underwriters for all out-of-pocket expenses (including the
reasonable fees, disbursements and other charges of their
counsel) reasonably incurred by them in connection with the
proposed purchase and sale of the Shares, provided, however,
that the Fund and the Adviser shall not be liable for any loss
of anticipated profits or speculative or consequential or
similar damages for such termination and (ii) no Underwriter
who has failed or refused to purchase the Shares agreed to be
purchased by it under this Underwriting Agreement, in breach
of its obligations pursuant to this Underwriting Agreement,
will be relieved of liability to the Fund, the Adviser and the
other Underwriters for damages occasioned by its default.
(h) Without the prior written consent of the Managing
Representatives, the Fund will not offer, sell or register
with the Commission, or announce an offering of, any equity
securities of the Fund, within 180 days after the date of the
Effective Time, except for the Shares as described in the
Prospectus and any issuances of Common Shares pursuant to the
Dividend Reinvestment Plan and except in connection with any
offering of preferred shares of beneficial interest as
contemplated by the Prospectus.
(i) The Fund will use its commercially reasonable best efforts to
cause the Shares to be listed on the NYSE and the Chicago
Stock Exchange prior to the date the Shares are issued,
subject only to official notice of the issuance thereof, and
comply with the rules and regulations of such exchange.
(j) 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 objective and policies of the Fund as described in
the Prospectus.
6. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters to purchase the Shares are subject to the accuracy on the
date of this Underwriting Agreement, and as of each of the Closing
Times, of the representations of the Fund and the Adviser in this
Underwriting Agreement, to the accuracy and completeness of all
material statements made by the Fund, the Adviser or any of its
respective officers in any certificate delivered to the Managing
Representatives or their counsel pursuant to this Underwriting
Agreement, to performance by the Fund and the Adviser of their
respective obligations under this Underwriting Agreement and to the
satisfaction (or waiver in writing by the Managing Representatives on
behalf of the Underwriters) of each of the following additional
conditions:
(a) The Registration Statement must have become effective by 5:30
p.m., New York City time, on the date of this Underwriting
Agreement or such later date and time as the Managing
Representatives consent to in writing. The Prospectus must
have been filed in accordance with Rule 497(b) or (h) or a
certificate must have been filed in accordance with Rule
497(j), as the case may be, under the Securities Act.
(b) No order suspending the effectiveness of the Registration
Statement may be in effect and no proceedings for such purpose
may be pending before or, to the knowledge of counsel to the
Underwriters, threatened by the Commission, and any requests
for additional information on the part of the Commission (to
be included in the Registration Statement or the Prospectus or
otherwise) must be complied with or waived to the reasonable
satisfaction of the Managing Representatives.
(c) Since the dates as of which information is given in the
Registration Statement, the Pricing Prospectus and the
Prospectus, as of the date of this Underwriting Agreement, (i)
there
14
must not have been any change in the Common Shares or the
liabilities of the Fund except as set forth in or contemplated
by the Pricing Prospectus or the Prospectus; (ii) there must
not have been any change or a development involving a
prospective change in the general affairs, prospects,
management, business, financial condition or results of
operations of the Fund, the Adviser or the Subadviser whether
or not arising from transactions in the ordinary course of
business as set forth in or contemplated by the Pricing
Prospectus or the Prospectus; (iii) the Fund must not have
sustained any loss or interference with its business from any
court or from legislative or other governmental action, order
or decree, whether foreign or domestic, or from any other
occurrence not described in the Registration Statement, the
Pricing Prospectus and the Prospectus; and (iv) there must not
have occurred any event that makes untrue or incorrect in any
material respect any statement or information contained in the
Registration Statement, the Pricing Prospectus or the
Prospectus or that is not reflected in the Registration
Statement, the Pricing Prospectus or the Prospectus but should
be reflected therein in order to make the statements or
information therein (in the case of the Pricing Prospectus and
the Prospectus, in light of the circumstances in which they
were made) not misleading in any material respect; if, in the
sole judgment of the Managing Representatives, any such
development referred to in clause (i), (ii), (iii), or (iv) of
this paragraph (c) is material and adverse so as to make it
impracticable or inadvisable to consummate the sale and
delivery of the Shares to the public on the terms and in the
manner contemplated by the Pricing Prospectus.
(d) The Managing Representatives must have received as of each
Closing Time a certificate, dated such date, of the President,
a Vice-President or an Executive Director and the Chief
Financial Officer, Treasurer or Assistant Treasurer of each of
the Fund and the Adviser certifying (in their capacity as such
officers and, with respect to clauses (ii), (iii) and (vi)
below, on behalf of the Fund and the Adviser, as the case may
be) that (i) the signers have carefully examined the
Registration Statement, the Prospectus, the Pricing Prospectus
and this Underwriting Agreement, (ii) the representations of
the Fund (with respect to the certificates from such Fund
officers) and the representations of the Adviser (with respect
to the certificates from such officers of the Adviser) in this
Underwriting Agreement are accurate on and as of the date of
the certificate, (iii) there has not been any material adverse
change in the general affairs, prospects, management,
business, financial condition or results of operations of the
Fund (with respect to the certificates from such Fund
officers) or the Adviser (with respect to the certificates
from such officers of the Adviser), which change would
materially and adversely affect the ability of the Fund or the
Adviser, as the case may be, to fulfill its obligations under
this Underwriting Agreement (with respect to the certificates
from such officers of the Fund and the Adviser), the
Investment Advisory Agreement (with respect to the
certificates from such officers of the Fund and the Adviser)
or the Subadvisory Agreement (with respect to the certificates
from such officers of the Adviser), whether or not arising
from transactions in the ordinary course of business, (iv)
with respect to the certificates from such officers of the
Fund only, to the knowledge of such officers after reasonable
investigation, no order suspending the effectiveness of the
Registration Statement, prohibiting the sale of any of the
Shares or otherwise having a material adverse effect on the
Fund has been issued and no proceedings for any such purpose
are pending before or, to the knowledge of such officers after
reasonable investigation, threatened by the Commission or any
other regulatory body, whether foreign or domestic, (v) with
respect to the certificates from such officers of the Adviser
only, no order having a material adverse effect on the ability
of the Adviser to fulfill its obligations under this
Underwriting Agreement, the Shareholder Servicing Agreements,
the Subscription Agreement, the Investment
15
Advisory Agreement or the Subadvisory Agreement has been
issued and no proceedings for any such purpose are pending
before or, to the knowledge of the officers of the Adviser
after reasonable investigation, threatened by the Commission
or any other regulatory body, whether foreign or domestic and
(vi) each of the Fund (with respect to the certificates from
such Fund officers) and the Adviser (with respect to the
certificates from such officers of the Adviser) has performed
all of its respective agreements that this Underwriting
Agreement requires it to perform by such Closing Time (to the
extent not waived in writing by the Managing Representatives).
(e) The Managing Representatives must have received as of each
Closing Time a certificate, dated such date, of a member of
the Subadviser certifying that (i) the Subadviser has
carefully examined the Registration Statement, the Prospectus,
and the Pricing Prospectus, (ii) the representations of the
Subadviser in the Side Letter, are accurate on and as of the
date of the certificate, (iii) there has not been any material
adverse change in the general affairs, prospects, management,
business, financial condition or results of operations of the
Subadviser, which change would materially and adversely affect
the ability of the Subadviser to fulfill its obligations under
the Subadvisory Agreement, whether or not arising from
transactions in the ordinary course of business, and (iv) no
order having a material adverse effect on the ability of the
Subadviser to fulfill its obligations under the Side Letter or
the Subadvisory Agreement has been issued and no proceedings
for any such purpose are pending before or, to the knowledge
of the member after reasonable investigation, threatened by
the Commission or any other regulatory body, whether foreign
or domestic and the Subadviser has performed all of its
respective agreements that the Side Letter requires it to
perform by such Closing Time (to the extent not waived in
writing by the Managing Representatives).
(f) The Managing Representatives must have received as of each
Closing Time the opinions dated as of the date thereof
substantially in the form of Schedules B, C and D to this
Underwriting Agreement from the counsel identified in each
such Schedule.
(g) The Managing Representatives must have received as of each
Closing Time from Clifford Chance US LLP an opinion dated as
of the date thereof with respect to the Fund, the Shares, the
Registration Statement and the Prospectus, this Underwriting
Agreement and the form and sufficiency of all proceedings
taken in connection with the sale and delivery of the Shares.
Such opinion and proceedings shall fulfill the requirements of
this Section 6(f) only if such opinion and proceedings are
reasonably satisfactory in all respects to the Managing
Representatives. The Fund and the Adviser must have furnished
to such counsel such documents as counsel may reasonably
request for the purpose of enabling them to render such
opinion.
(h) The Managing Representatives must have received on the date
this Underwriting Agreement is signed and delivered by you a
signed letter, dated such date, substantially in the form of
Schedule E to this Underwriting Agreement from the independent
registered public accounting firm designated in such Schedule.
The Managing Representatives also must have received as of
each Closing Time a signed letter from such accountants, dated
as of the date thereof, confirming on the basis of a review in
accordance with the procedures set forth in their earlier
letter that nothing has come to their attention during the
period from a date not more than five business days before the
date of this Underwriting Agreement, specified in the letter,
to a date not more than five business days before the date of
such Closing Time, that would require any change in their
letter referred to in the foregoing sentence.
16
(i) At Firm Shares Closing Time, the Managing Representatives must
have received the Shareholder Servicing Agreements, as
executed by the Adviser.
(j) At Firm Shares Closing Time, the Shares must have been
approved for listing on the NYSE and the Chicago Stock
Exchange, subject only to official notice of issuance.
(k) At Firm Shares Closing Time, the NASD must not have raised any
objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Underwriting Agreement will comply only if they are
in form and scope reasonably satisfactory to counsel for the
Underwriters, provided that any such documents, forms of which are
annexed hereto, shall be deemed satisfactory to such counsel if
substantially in such form.
7. Termination. This Underwriting Agreement may be terminated by the
Managing Representatives by notifying the Fund at any time:
(a) before the later of the Effective Time and the time when any
of the Shares are first generally offered pursuant to this
Underwriting Agreement by the Managing Representatives to
dealers by letter or telegram;
(b) as of or before any Closing Time if (i) trading in the equity
securities of the Fund is suspended by the Commission or by
the principal exchange that lists the Shares, (ii) trading in
securities generally on the NYSE or the Nasdaq Stock Market
shall have been suspended or limited or minimum or maximum
prices shall have been generally established on such exchange
or over-the-counter market, (iii) additional material
governmental restrictions, not in force on the date of this
Underwriting Agreement, have been imposed upon trading in
securities or trading has been suspended on any U.S.
securities exchange, (iv) a general banking moratorium has
been established by U.S. federal or New York authorities or
(v) any material adverse change in the financial or securities
markets in the United States or in political, financial or
economic conditions in the United States or any outbreak or
material escalation of hostilities or declaration by the
United States of a national emergency or war or other
calamity, terrorist activity or crisis shall have occurred,
the effect of any of the foregoing (i) -- (iv) which is, in
the sole judgment of the Managing Representatives, material
and adverse so as to make it impracticable or inadvisable to
consummate the sale and delivery of the Shares to the public
on the terms and in the manner contemplated by the Pricing
Prospectus; or
(c) as of or before any Closing Time, if any of the conditions
specified in Section 6 with respect to such Closing Time have
not been fulfilled when and as required by this Underwriting
Agreement.
8. Substitution of Underwriters. If one or more of the Underwriters fails
(other than for a reason sufficient to justify the termination of this
Underwriting Agreement) to purchase as of any Closing Time the Shares
agreed to be purchased as of such Closing Time by such Underwriter or
Underwriters, the Managing Representatives may find one or more
substitute underwriters to purchase such Shares or make such other
arrangements as the Managing Representatives deem advisable, or one or
more of the remaining Underwriters may agree to purchase such Shares in
such proportions as may be approved by the Managing Representatives, in
each case upon the terms set forth in this Underwriting Agreement. If
no such arrangements have been made within 36 hours after the date of
such Closing Time, and
17
(a) the number of Shares to be purchased by the defaulting
Underwriters as of such Closing Time does not exceed 10% of
the Shares that the Underwriters are obligated to purchase as
of such Closing Time, each of the non-defaulting Underwriters
will be obligated to purchase such Shares on the terms set
forth in this Underwriting Agreement in proportion to their
respective obligations under this Underwriting Agreement, or
(b) the number of Shares to be purchased by the defaulting
Underwriters as of such Closing Time exceeds 10% of the Shares
to be purchased by all the Underwriters as of such Closing
Time, the Fund will be entitled to an additional period of 24
hours within which to find one or more substitute underwriters
reasonably satisfactory to the Managing Representatives to
purchase such Shares on the terms set forth in this
Underwriting Agreement.
Upon the occurrence of the circumstances described in the foregoing
paragraph (b), either the Managing Representatives or the Fund will have the
right to postpone the date of the applicable Closing Time for not more than five
business days in order that necessary changes and arrangements (including any
necessary amendments or supplements to the Registration Statement, the Pricing
Prospectus or the Prospectus) may be effected by the Managing Representatives
and the Fund. If the number of Shares to be purchased as of such Closing Time by
such defaulting Underwriter or Underwriters exceeds 10% of the Shares that the
Underwriters are obligated to purchase as of such Closing Time, and none of the
non-defaulting Underwriters or the Fund makes arrangements pursuant to this
Section within the period stated for the purchase of the Shares that the
defaulting Underwriters agreed to purchase, this Underwriting Agreement will
terminate without liability on the part of any non-defaulting Underwriter, the
Fund or the Adviser except as provided in Sections 5(g) and 9 hereof. Any action
taken under this Section will not affect the liability of any defaulting
Underwriter to the Fund or the Adviser or to any non-defaulting Underwriters
arising out of such default. A substitute underwriter will become an Underwriter
for all purposes of this Underwriting Agreement.
9. Indemnity and Contribution.
(a) Each of the Fund and the Adviser, jointly and severally,
agrees to indemnify, defend and hold harmless each
Underwriter, its partners, directors and officers, and any
person who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange
Act, and the successors and assigns of all of the foregoing
persons from and against any loss, damage, expense, liability
or claim (including the reasonable cost of investigation)
which, jointly or severally, any such Underwriter or any such
person may incur under the Securities Act, the Exchange Act,
the Investment Company Act, the Advisers Act, the common law
or otherwise, insofar as such loss, damage, expense, liability
or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in
the Registration Statement (or in the Registration Statement
as amended by any post-effective amendment thereof by the
Fund) or (i) arises out of or is based upon any omission or
alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or (ii) arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact
included in any preliminary prospectus, any Road Show
Material, the Disclosure Package, any Sales Material or the
Prospectus (as it may be amended or supplemented) or arises
out of or is based upon any omission or alleged omission 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; except with respect to
either of the foregoing clause (i) and (ii) insofar as any
such loss, damage, expense, liability or claim arises out of
or is based upon any untrue statement or alleged
18
untrue statement of a material fact contained in and in
conformity with information concerning such Underwriters
furnished in writing by or on behalf of such Underwriter
through the Managing Representatives to the Fund expressly for
use with reference to any Underwriter in such Registration
Statement, Disclosure Package or prospectus (as amended or
supplemented) as set forth in Section 9(f) hereof or arises
out of or is based upon any omission or alleged omission to
state a material fact in connection with such information
required to be stated in such Registration Statement,
Disclosure Package or prospectus or necessary to make such
information (with respect to such Disclosure Package or
prospectus, in light of the circumstances under which they
were made) not misleading.
If any action, suit or proceeding (together, a "Proceeding") is brought
against an Underwriter or any such person in respect of which indemnity may be
sought against the Fund or the Adviser pursuant to the foregoing paragraph, such
Underwriter or such person shall promptly notify the Fund or the Adviser, as the
case may be, in writing of the institution of such Proceeding and the Fund or
the Adviser shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify the Fund or the Adviser shall not relieve the Fund or the Adviser from
any liability which the Fund or the Adviser may have to any Underwriter or any
such person or otherwise. Such Underwriter or such person shall have the right
to employ its or their own counsel in any such case, but the reasonable fees and
expenses of such counsel shall be at the expense of such Underwriter or of such
person unless the employment of such counsel shall have been authorized in
writing by the Fund or the Adviser, as the case may be, in connection with the
defense of such Proceeding or the Fund or the Adviser shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to
have charge of the defense of such Proceeding or such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them, which are different from, additional to or in conflict with those
available to the Fund or the Adviser (in which case the Fund or the Adviser
shall not have the right to direct the defense of such Proceeding on behalf of
the indemnified party or parties), in any of which events such reasonable fees
and expenses shall be borne by the Fund or the Adviser and paid as incurred (it
being understood, however, that the Fund or the Adviser shall not be liable for
the expenses of more than one separate counsel (in addition to any local
counsel) in any one Proceeding or series of related Proceedings in the same
jurisdiction representing the indemnified parties who are parties to such
Proceeding). Neither the Fund nor the Adviser shall be liable for any settlement
of any Proceeding effected without its written consent but if settled with the
written consent of the Fund or the Adviser, the Fund or Adviser, as the case may
be, agrees to indemnify and hold harmless any Underwriter and any such person
from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for reasonable fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent
if (i) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least 30 days' prior notice of its
intention to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
19
(b) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Fund and the Adviser, and each of their
respective shareholders, partners, managers, members,
trustees, directors and officers, and any person who controls
the Fund or the Adviser within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons from
and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation), which,
jointly or severally, the Fund, the Adviser or any such person
may incur under the Securities Act, the Exchange Act, the
Investment Company Act, the Advisers Act, the common law or
otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and
in conformity with information concerning such Underwriters
furnished in writing by or on behalf of such Underwriter to
the Fund or the Adviser expressly for use with reference to
such Underwriter in the Registration Statement (or in the
Registration Statement as amended by any post-effective
amendment thereof by the Fund) or in the Disclosure Package or
Prospectus as set forth in Section 9(f) hereof, or arises out
of or is based upon any omission or alleged omission to state
a material fact in connection with such information required
to be stated in such Registration Statement or the Disclosure
Package or Prospectus or necessary to make such information
not misleading (with respect to the Disclosure Package and
Prospectus, in light of the circumstances under which they
were made).
If any Proceeding is brought against the Fund, the Adviser or any such
person in respect of which indemnity may be sought against any Underwriter
pursuant to the foregoing paragraph, the Fund, the Adviser or such person shall
promptly notify such Underwriter in writing of the institution of such
Proceeding and such Underwriter shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses; provided, however, that the omission
to so notify such Underwriter shall not relieve such Underwriter from any
liability which such Underwriter may have to the Fund, the Adviser or any such
person or otherwise. The Fund, the Adviser or such person shall have the right
to employ its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of the Fund, the Adviser or such person, as the
case may be, unless the employment of such counsel shall have been authorized in
writing by such Underwriter in connection with the defense of such Proceeding or
such Underwriter shall not have, within a reasonable period of time in light of
the circumstances, employed counsel to have charge of the defense of such
Proceeding or such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them, which are different from or
additional to or in conflict with those available to such Underwriter (in which
case such Underwriter shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties, but such Underwriter
may employ counsel in connection with the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Underwriter), in any of
which events such fees and expenses shall be borne by such Underwriter and paid
as incurred (it being understood, however, that such Underwriter shall not be
liable for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). No Underwriter shall be liable for any settlement of any such
Proceeding effected without the written consent of such Underwriter but if
settled with the written consent of such Underwriter, such Underwriter agrees to
indemnify and hold harmless the Fund, the Adviser and any such person from and
against any loss or liability by reason of such settlement. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such
20
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days'
prior notice of its intention to settle. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened Proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and
(b) of this Section 9 in respect of any losses, damages,
expenses, liabilities or claims referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
damages, expenses, liabilities or claims (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Fund and the Adviser on the one hand 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 Adviser on the one hand and of the Underwriters on the
other in connection with the statements or omissions, which
resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable
considerations. The relative benefits received by the Fund and
the Adviser on the one hand and the Underwriters on the other
shall be deemed to be in the same respective proportions as
the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses)
received by the Fund and the total underwriting discounts and
commissions received by the Underwriters, bear to the
aggregate public offering price of the Shares. The relative
fault of the Fund and the Adviser on the one hand and of the
Underwriters on the other shall be determined by reference to,
among other things, whether the untrue statement or alleged
untrue statement of a material fact or omission or alleged
omission relates to information supplied by the Fund or the
Adviser or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid
or payable by a party as a result of the losses, damages,
expenses, liabilities and claims referred to in this
subsection shall be deemed to include any legal or other fees
or expenses reasonably incurred by such party in connection
with investigating, preparing to defend or defending any
Proceeding.
(d) The Fund and the Adviser and the Underwriters agree that it
would not be just and equitable if contribution pursuant to
this Section 9 were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose)
or by any other method of allocation that does not take
account of the equitable considerations referred to in
subsection (c) above. Notwithstanding the provisions of this
Section 9, no Underwriter shall be required to contribute any
amount in excess of the fees and commissions received by such
Underwriter. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 9 are
several in proportion to their respective underwriting
commitments and not joint.
(e) The indemnity and contribution agreements contained in this
Section 9 and the covenants, warranties and representations of
the Fund contained in this Underwriting
21
Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of any Underwriter, its
partners, directors or officers or any person (including each
partner, officer or director of such person) who controls any
Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, or by or on behalf of
the Fund or the Adviser, its shareholders, partners, advisers,
members, trustees, directors or officers or any person who
controls the Fund or the Adviser within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act,
and shall survive any termination of this Underwriting
Agreement or the issuance and delivery of the Shares. The Fund
and the Adviser and each Underwriter agree promptly to notify
each other of the commencement of any Proceeding against it
and, in the case of the Fund or the Adviser, against any of
the Fund's trustees, directors or officers or any of the
Adviser's shareholders, partners, managers, members, trustees,
directors or officers in connection with the issuance and sale
of the Shares, or in connection with the Registration
Statement or Prospectus.
(f) The Fund and the Adviser each acknowledge that the statements
with respect to (1) the public offering price per share of the
Shares as set forth on the cover page of the Prospectus and
(2) the selling concessions and reallowances of selling
concessions, the statements regarding stabilization, penalty
bids and syndicate short selling, and the statements regarding
electronic delivery of prospectuses, all as described under
the caption "Underwriting" in the Prospectus constitute the
only information furnished in writing to the Fund by the
Underwriters expressly for use in such document. The
Underwriters severally confirm that these statements are
correct in all material respects and were so furnished by or
on behalf of each of the Underwriters severally for use in the
Prospectus.
(g) Notwithstanding any other provisions in this Section 9, no
party shall be entitled to indemnification or contribution
under this Underwriting Agreement against any liability to the
Fund or its security holders by reason of such person's
willful misfeasance, bad faith or gross negligence in the
performance of its duties or such person's reckless disregard
of its obligations and duties under this Underwriting
Agreement. This Section 9(g) shall not be construed to imply
that the Underwriters have any obligations or duties under
this Agreement (except the several obligation to purchase the
Shares on the terms and subject to the conditions herein). For
avoidance of doubt, it is understood that the Underwriters
have no duty hereunder to the Fund to perform any due
diligence investigation.
10. Notices. Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or
sent to UBS Securities LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Syndicate Department, and if to the Fund or the
Adviser, shall be sufficient in all respects if delivered or sent to
the Fund or the Adviser, as the case may be, at the offices of the Fund
or the Adviser at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
11. Governing Law; Construction. This Underwriting Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of
or in any way relating to this Underwriting Agreement ("Claim"),
directly or indirectly, shall be governed by, and construed in
accordance with, the laws of the State of New York. The Section
headings in this Underwriting Agreement have been inserted as a matter
of convenience of reference and are not a part of this Underwriting
Agreement.
22
12. Submission to Jurisdiction. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts
of the State of New York located in the City and County of New York or
in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of
such matters, and the Fund and UBS Securities each consent to the
jurisdiction of such courts and personal service with respect thereto.
The Fund hereby consents to personal jurisdiction, service and venue in
any court in which any Claim arising out of or in any way relating to
this Underwriting Agreement is brought by any third party against UBS
Securities or any indemnified party. Each of UBS Securities, the Fund
(on its behalf and, to the extent permitted by applicable law, on
behalf of its shareholders and affiliates) and the Adviser (on its
behalf and, to the extent permitted by applicable law, on behalf of its
shareholders and affiliates) waives all right to trial by jury in any
action, proceeding or counterclaim (whether based upon contract, tort
or otherwise) in any way arising out of or relating to this
Underwriting Agreement. Each of the Fund and the Adviser agrees that a
final judgment in any such action, proceeding or counterclaim brought
in any such court shall be conclusive and binding upon the Fund and the
Adviser, as the case may be, and may be enforced in any other courts in
the jurisdiction of which the Fund or the Adviser, as the case may be,
is or may be subject, by suit upon such judgment.
13. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Fund and the
Adviser and to the extent provided in Section 9 hereof the controlling
persons, shareholders, partners, members, trustees, managers, directors
and officers referred to in such section, and their respective
successors, assigns, heirs, personal representatives and executors and
administrators. No other person, partnership, association or
corporation (including a purchaser, as such purchaser, from any of the
Underwriters) shall acquire or have any right under or by virtue of
this Underwriting Agreement.
14. Counterparts. This Underwriting Agreement may be signed by the parties
in one or more counterparts which together shall constitute one and the
same agreement among the parties.
15. Successors and Assigns. This Underwriting Agreement shall be binding
upon the Underwriters, the Fund and the Adviser and any successor or
assign of any substantial portion of the Fund's, the Adviser's or any
of the Underwriters' respective businesses and/or assets, as the case
may be.
16. Disclaimer of Liability of Trustees and Beneficiaries. A copy of the
Certificate of Trust of the Fund is on file with the Secretary of State
of Delaware, and notice hereby is given that this Underwriting
Agreement is executed on behalf of the Fund by an officer or Trustee of
the Fund in his or her capacity as an officer or Trustee of the Fund
and not individually and that the obligations under or arising out of
this Underwriting Agreement are not binding upon any of the Trustees,
officers or shareholders individually but are binding only upon the
assets and properties of the Fund.
23
If the foregoing correctly sets forth the understanding among the Fund,
the Adviser and the Underwriters, please so indicate in the space provided
below, whereupon this letter and your acceptance shall constitute a binding
agreement among the Fund, the Adviser and the Underwriters, severally.
Very truly yours,
▇▇▇ ▇▇▇▇▇▇ DYNAMIC CREDIT OPPORTUNITIES FUND
--------------------------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Principal Executive Officer
▇▇▇ ▇▇▇▇▇▇ ASSET MANAGEMENT
--------------------------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇
Title: Managing Director
24
Accepted and agreed to as of the date first above written, on behalf of
themselves and the other several Underwriters named in Schedule A
UBS SECURITIES LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
▇▇▇▇▇▇▇▇▇▇▇ & CO. INC.
RBC CAPITAL MARKETS CORPORATION
▇▇▇▇▇ FARGO SECURITIES, LLC
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO. INCORPORATED
BB&T CAPITAL MARKETS, A DIVISION OF ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, INC.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, INCORPORATED
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
--------------------------
By: ▇▇▇▇ ▇▇▇▇
Title: Managing Director
--------------------------
By: ▇▇▇▇ ▇▇▇
Title: Executive Director
25
SCHEDULE A
UNDERWRITERS NUMBER OF SHARES
------------------------------------------------------------------ ----------------
UBS Securities LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
▇▇▇▇▇▇▇▇▇▇▇ & Co. Inc.
RBC Capital Markets Corporation
▇▇▇▇▇ Fargo Securities, LLC
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
BB&T Capital Markets, a division of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
[-]
-----------------
Total
=================
Sch. A-1
