EXECUTION VERSION
NUVEEN FLOATING RATE INCOME FUND
41,800,000 Common Shares
($.01 par value)
AMENDED AND RESTATED UNDERWRITING AGREEMENT
New York, New York
March 29, 2004
Citigroup Global Markets Inc.
Nuveen Investments, LLC
As Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned, Nuveen Floating Rate Income Fund, a Massachusetts
business trust (the "Fund"), Nuveen Institutional Advisory Corp., a Delaware
corporation (the "Investment Adviser"), and Symphony Asset Management, LLC, a
California limited liability company (the "Subadviser" and the Subadviser,
together with the Investment Adviser, each an "Adviser" and collectively the
"Advisers"), address you as underwriters and as the representatives (the
"Representatives") of each of the several underwriters named on Schedule I
hereto (herein collectively called "Underwriters"). The Fund proposes to sell to
the Underwriters 41,800,000 shares (the "Firm Securities") of its common shares
of beneficial interest, par value $.01 per share (the "Common Shares"). The Fund
also proposes to sell to the Underwriters, upon the terms and conditions set
forth herein, up to an additional 6,200,000 Common Shares (the "Option
Securities") to cover over-allotments. The Firm Securities and the Option
Securities are hereinafter collectively referred to as the "Securities." Unless
otherwise stated, the term "you" as used herein means Citigroup Global Markets
Inc. individually on its own behalf and on behalf of the other Representatives.
Certain terms used herein are defined in Section 18 hereof.
The Fund and the Advisers wish to confirm as follows their agreements
with you and the other several Underwriters on whose behalf you are acting in
connection with the several purchases of the Securities by the Underwriters.
The Fund has entered into an Investment Management Agreement with the
Investment Adviser dated as of February 24, 2004, a Custodian Agreement with
State Street Bank and Trust Company dated as of August 19, 2002, effective as of
March 25, 2004 and a Shareholder Transfer Agency and Service Agreement with
State Street Bank and Trust
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Company dated as of October 7, 2002, effective as of March 5, 2004, and such
agreements are herein referred to as the "Management Agreement," the "Custodian
Agreement" and the "Transfer Agency Agreement," respectively. The Investment
Adviser has entered into an investment sub-advisory agreement with the
Subadviser dated as of February 24, 2004 and such agreement is herein referred
to as the "Sub-Advisory Agreement." Collectively, (i) the Management Agreement,
the Custodian Agreement and the Transfer Agency Agreement are herein referred to
as the "Fund Agreements." In addition, the Fund has adopted a dividend
reinvestment plan (the "Dividend Reinvestment Plan") pursuant to which holders
of Common Shares shall have their dividends automatically reinvested in
additional Common Shares of the Fund unless they elect to receive such dividends
in cash.
1. Representations and Warranties of the Fund and the Advisers. The
Fund, the Investment Adviser and the Subadviser, jointly and severally,
represent and warrant to, and agree with, each Underwriter as set forth below in
this Section 1.
(a) The Fund has prepared and filed with the Commission a registration
statement (file numbers 333-112179 and 811-21494) on Form N-2, including a
related preliminary prospectus (including the statement of additional
information incorporated by reference therein), for registration under the
Act and the 1940 Act of the offering and sale of the Securities. The Fund
may have filed one or more amendments thereto, including a related
preliminary prospectus (including the statement of additional information
incorporated by reference therein), each of which has previously been
furnished to you. The Fund will next file with the Commission one of the
following: either (1) prior to the Effective Date of such registration
statement, a further amendment to such registration statement (including
the form of final prospectus (including the statement of additional
information incorporated by reference therein)) or (2) after the Effective
Date of such registration statement, a final prospectus (including the
statement of additional information incorporated by reference therein) in
accordance with Rules 430A and 497. In the case of clause (2), the Fund has
included in such registration statement, as amended at the Effective Date,
all information (other than Rule 430A Information) required by the Act and
the 1940 Act and the Rules and Regulations to be included in such
registration statement and the Prospectus. As filed, such amendment and
form of final prospectus (including the statement of additional information
incorporated by reference therein) (in the case of clause (1) above), or
such final prospectus (including the statement of additional information
incorporated by reference therein) (in the case of clause (2) above), shall
contain all Rule 430A Information, together with all other such required
information, and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Fund has advised you, prior to the
Execution Time, will be included or made therein.
(b) Each Preliminary Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement
thereto, complied when so filed in all material respects with the
provisions of the Act, the 1940 Act and the Rules and Regulations.
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(c) The Registration Statement, in the form in which it became or
becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective and the Prospectus
and any amendment or supplement thereto when filed with the Commission
under Rule 497 of the Act Rules and Regulations and the 1940 Act
Notification when originally filed with the Commission and any amendment or
supplement thereto when filed with the Commission complied or will comply
in all material respects with the provisions of the Act, the 1940 Act and
the Rules and Regulations and did not or will not at any such times contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
(in the case of a prospectus, in light of the circumstances under which
they were made) not misleading; except that this representation and
warranty does not apply to statements in or omissions from the Registration
Statement or the Prospectus (or any amendment or supplement thereto) made
in reliance upon and in conformity with information relating to any
Underwriter furnished to the Fund in writing by or on behalf of any
Underwriter through you expressly for use therein.
(d) All the outstanding Common Shares of the Fund have been duly
authorized and validly issued, are fully paid and, except as described in
the Registration Statement, nonassessable and are free of any preemptive or
similar rights; the Securities have been duly authorized and, when issued
and delivered to the Underwriters against payment therefor in accordance
with the terms hereof, will be validly issued, fully paid and, except as
described in the Registration Statement, nonassessable and free of any
preemptive or similar rights and the capital stock of the Fund conforms to
the description thereof in the Registration Statement and the Prospectus
(and any amendment or supplement to either of them).
(e) The Fund has been duly formed and is validly existing in good
standing as a business trust under the laws of The Commonwealth of
Massachusetts, with full power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them) and is duly registered and qualified to conduct business and is in
good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify does
not have a material adverse effect on the condition (financial or other),
business, properties, net assets or results of operations of the Fund. The
Fund has no subsidiaries.
(f) There are no legal or governmental proceedings pending or, to the
knowledge of the Fund, threatened, against the Fund or to which the Fund or
any of its properties is subject, whether or not arising from transactions
in the ordinary course of business, that (i) are required to be described
in the Registration Statement or the Prospectus (or any amendment or
supplement to either of them) but are not described as required by the Act,
the 1940 Act or the Rules and Regulations, (ii) are not described in the
Prospectus and could reasonably be expected to have a material adverse
effect on the performance of this Agreement or the consummation of any of
the transactions contemplated hereby or (iii) are not described in the
Prospectus and could reasonably be
4
expected to have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Fund.
(g) There are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Registration Statement
or the Prospectus (or any amendment or supplement to either of them) or to
be filed as an exhibit to the Registration Statement that are not described
or filed as required by the Act, the 1940 Act or the Rules and Regulations.
(h) The Fund is not in violation of its Declaration of Trust or By-Laws
or in material violation of any material law, ordinance, administrative or
governmental rule or regulation applicable to the Fund, including, without
limitation, the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and
the rules and regulations promulgated in connection therewith, or of any
material decree of the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court or
any other governmental, regulatory, self-regulatory or administrative
agency or any official having jurisdiction over the Fund or in breach or
default in any material respect in the performance of any obligation,
agreement or condition contained in any material bond, debenture, note or
any other evidence of indebtedness or in any agreement, indenture, lease or
other instrument to which the Fund is a party or by which it or any of its
properties may be bound.
(i) Neither the issuance and sale of the Securities, the execution,
delivery or performance of this Agreement nor any of the Fund Agreements by
the Fund, nor the consummation by the Fund of the transactions contemplated
hereby or thereby (i) requires any consent, approval, authorization or
other order of or registration or filing which has not yet been obtained or
made with the Commission, the NASD, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official (except compliance
with the securities or Blue Sky laws of various jurisdictions which have
been or will be effected in accordance with this Agreement and except for
compliance with the filing requirements of the NASD Division of Corporate
Finance) or conflicts or will conflict with or constitutes or will
constitute a breach of the Declaration of Trust or By-Laws of the Fund or
(ii) conflicts or will conflict with or constitutes or will constitute a
breach of or a default under, any material agreement, indenture, lease or
other instrument to which the Fund is a party or by which it or any of its
properties may be bound or materially violates or will materially violate
any material statute, law, regulation or filing or judgment, injunction,
order or decree applicable to the Fund or any of its properties or will
result in the creation or imposition of any material lien, charge or
encumbrance upon any property or assets of the Fund pursuant to the terms
of any agreement or instrument to which it is a party or by which it may be
bound or to which any of the property or assets of the Fund is subject.
(j) Since the date as of which information is given in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them), except as otherwise stated therein, (i) there has been no material
adverse change in the condition (financial or other), business, properties,
net assets or results of operations of
5
the Fund or business prospects (other than as a result of a change in the
financial markets generally) of the Fund, whether or not arising in the
ordinary course of business, (ii) there have been no transactions entered
into by the Fund which are material to the Fund other than those in the
ordinary course of its business as described in the Prospectus (and any
amendment or supplement thereto) and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Fund on any class of
its common stock.
(k) The accountants, Ernst & Young LLP, who have audited or shall audit
at or prior to the Closing Date the Statement of Assets and Liabilities and
the related Statement of Operations both included in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them), are an independent public accounting firm as required by the Act,
the 1940 Act and the Rules and Regulations.
(l) The financial statements, together with related schedules and
notes, included in the Registration Statement and the Prospectus (or any
amendment or supplement to either of them) present fairly the financial
position of the Fund on the basis stated in the Registration Statement and
the Prospectus at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved except as disclosed
therein; and the other financial and statistical information and data
included in the Registration Statement or the Prospectus (or any amendment
or supplement thereto) are accurately derived from such financial
statements and the books and records of the Fund.
(m) The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497 under
the Act Rules and Regulations, has taken all required action under the Act,
the 1940 Act and the Rules and Regulations to make the public offering and
consummate the sale of the Securities as contemplated by this Agreement.
(n) The execution and delivery of, and the performance by the Fund of
its obligations under, this Agreement and the Fund Agreements have been
duly and validly authorized by the Fund and this Agreement and the Fund
Agreements have been duly executed and delivered by the Fund and constitute
the valid and legally binding agreements of the Fund, enforceable against
the Fund in accordance with their terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws
and subject to the qualification that the enforceability of the Fund's
obligations hereunder and thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable principles.
(o) Except as disclosed in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them), subsequent
to the respective dates as of which such information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), the Fund has not incurred any liability or obligation,
direct or contingent, that is material to the Fund and there has not been
any
6
change in the capital stock or material increase in the short-term debt or
long-term debt of the Fund.
(p) The Fund has not distributed and, prior to the later to occur of
(i) the Closing Date and (ii) completion of the distribution of the
Securities, will not distribute to the public in either printed or
electronic form any offering material in connection with the offering and
sale of the Securities other than the Registration Statement, the
Preliminary Prospectuses included in each of Pre-Effective Amendment No. 1
to the Registration Statement, Pre-Effective Amendment No. 2 to the
Registration Statement, Pre-Effective Amendment No. 3 to the Registration
Statement, Pre-Effective Amendment No. 4 to the Registration Statement and
Pre-Effective Amendment No. 5 to the Registration Statement, the Prospectus
and the advertisements/sales literature filed by Nuveen Investments, LLC
with the NASD on February 18, 2004.
(q) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus (and any amendment or supplement thereto); the Fund has
fulfilled and performed all its material obligations with respect to such
permits and no event has occurred which allows or, after notice or lapse of
time, would allow, revocation or termination thereof or results in any
other material impairment of the rights of the Fund under any such permit,
subject in each case to such qualification as may be set forth in the
Prospectus (and any amendment or supplement thereto); and, except as
described in the Prospectus (and any amendment or supplement thereto), none
of such permits contains any restriction that is materially burdensome to
the Fund.
(r) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization and with the investment policies and restrictions of
the Fund and the applicable requirements of the 1940 Act, the 1940 Act
Rules and Regulations and the Internal Revenue Code of 1986, as amended
(the "Code"); (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles, to calculate net asset value, to maintain
accountability for assets and to maintain material compliance with the
books and records requirements under the 1940 Act and the 1940 Act Rules
and Regulations; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv) the recorded
account for assets is compared with existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(s) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or licensee of
any patents, patent licenses, trademarks, service marks or trade names
which it does not own, possess or license.
(t) Except as stated in this Agreement and in the Prospectus (and any
amendment or supplement thereto), the Fund has not taken and will not take,
directly or indirectly, any action designed to or which should reasonably
be expected to cause or result in or which will constitute stabilization or
manipulation of the price of the
7
Common Shares in violation of federal securities laws and the Fund is not
aware of any such action taken or to be taken by any affiliates of the
Fund.
(u) The Fund is duly registered under the 1940 Act as a closed-end,
diversified management investment company and the 1940 Act Notification has
been duly filed with the Commission and, at the time of filing thereof and
at the time of filing any amendment or supplement thereto, conformed in all
material respects with all applicable provisions of the 1940 Act and the
1940 Act Rules and Regulations. The Fund has not received any notice from
the Commission pursuant to Section 8(e) of the 1940 Act with respect to the
1940 Act Notification or the Registration Statement (or any amendment or
supplement to either of them).
(v) All advertising, sales literature or other promotional material
(including "prospectus wrappers" and "broker kits"), whether in printed or
electronic form, authorized in writing by or prepared by the Fund or the
Advisers for use in connection with the offering and sale of the Securities
(collectively, "sales material") complied and comply in all material
respects with the applicable requirements of the Act, the Act Rules and
Regulations and the rules and interpretations of the NASD and if required
to be filed with the NASD under the NASD's conduct rules were so filed. No
sales material contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(w) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1940 Act, the 1940
Act Rules and Regulations, the Investment Advisers Act of 1940, as amended
(the "Advisers Act"), and the rules and regulations adopted by the
Commission under the Advisers Act (the "Advisers Act Rules and
Regulations").
(x) No holder of any security of the Fund has any right to require
registration of Common Shares or any other security of the Fund because of
the filing of the registration statement or consummation of the
transactions contemplated by this Agreement.
(y) The Securities have been duly approved for listing upon notice of
issuance on the New York Stock Exchange (the "NYSE") and the Fund's
registration statement on Form 8-A, under the Exchange Act, has become
effective.
(z) The Fund intends to direct the investment of the proceeds of the
offering of the Securities in such a manner as to comply with the
requirements of Subchapter M of the Code.
(aa) The Fund's directors and officers errors and omissions insurance
policy and its fidelity bond required by Rule 17g-1 of the 1940 Act Rules
and Regulations are in full force and effect; the Fund is in compliance
with the terms of such policy and fidelity bond in all material respects;
and there are no claims by the Fund under any such policy or fidelity bond
as to which any insurance company is denying liability or defending
8
under a reservation of rights clause; the Fund has not been refused any
insurance coverage sought or applied for; and the Fund has no reason to
believe that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost
that would not have a material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of the Fund,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(bb) Except as set forth in the Prospectus, no options, warrants or
other rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any securities for,
shares of capital stock of or ownership interests in the Fund are
outstanding.
(cc) Except as disclosed in the Prospectus, no trustee of the Fund is
an "interested person" (as defined in the ▇▇▇▇ ▇▇▇) of the Fund or an
"affiliated person" (as defined in the ▇▇▇▇ ▇▇▇) of any Underwriter listed
in Schedule I hereto.
(dd) Neither the rules of the New York Stock Exchange nor the laws of
the Commonwealth of Massachusetts require that the Common Shares be
represented by certificates.
2. Representations and Warranties of the Advisers. Each of the
Investment Adviser and the Subadviser, severally as to itself only and not
jointly or as to any other party, represents and warrants to each Underwriter as
follows:
(a) Such Adviser is a corporation, limited liability company or
limited liability partnership duly organized and validly existing in good
standing under the laws of its jurisdiction of incorporation or formation,
with full corporate, company or partnership power and authority to own,
lease and operate its properties and to conduct its business as described
in the Registration Statement and the Prospectus (and any amendment or
supplement to either of them) and is duly registered and qualified to
conduct business and is in good standing in each jurisdiction or place
where the nature of its properties or conduct of its business requires such
registration or qualification, except where the failure so to register or
to qualify would not have a material adverse effect on the condition
(financial or other), business, properties, net assets or results of
operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser under the
Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the
Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations
from acting under the Fund Agreements to which it is a party for the Fund
or the Sub-Advisory Agreement to which it is a party as contemplated by the
Registration Statement and the Prospectus (or any amendment or supplement
thereto).
(c) Such Adviser has full power and authority to enter into this
Agreement, the Fund Agreements to which it is a party and the Sub-Advisory
Agreement to which it
9
is a party, the execution and delivery of, and the performance by such
Adviser of its obligations under, this Agreement, the Fund Agreements to
which it is a party and the Sub-Advisory Agreement to which it is a party
have been duly and validly authorized by such Adviser; and this Agreement,
the Fund Agreements to which it is a party and the Sub-Advisory Agreement
to which it is a party have been duly executed and delivered by such
Adviser and constitute the valid and legally binding agreements of such
Adviser, enforceable against such Adviser in accordance with their terms,
except as rights to indemnity and contribution hereunder may be limited by
federal or state securities laws and subject to the qualification that the
enforceability of such Adviser's obligations hereunder and thereunder may
be limited by bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and by general
equitable principles.
(d) Such Adviser has the financial resources available to it necessary
for the performance of its services and obligations as contemplated in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto) and under this Agreement and the Fund Agreements to which it is a
party and the Sub-Advisory Agreement to which it is a party.
(e) Such Adviser is not in violation of its certificate or articles of
incorporation, by-laws, certificate of formation, limited liability company
agreement, limited liability partnership agreement or other organizational
documents or in violation of the applicable provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated in
connection therewith to which it is subject, in default under any material
agreement, indenture or instrument or in breach or violation of any
judgment, decree, order, rule or regulation of any court or governmental or
self-regulatory agency or body except where such violation or breach would
not have a material adverse effect on the condition (financial or other),
business, prospects, properties, net assets or results of operations of the
such Adviser or on the ability of the such Adviser to perform its
obligations under this Agreement, the Management Agreement to which it is a
party or the Sub-Advisory Agreement to which it is a party.
(f) The description of such Adviser and its business, and the
statements attributable to such Adviser, in the Registration Statement and
the Prospectus (and any amendment or supplement thereto), in each case
insofar as such information is set forth in the Registration Statement or
the Prospectus) complied and comply in all material respects with the
provisions of the Act, the 1940 Act, the Advisers Act, the Rules and
Regulations and the Advisers Act Rules and Regulations and did not and will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading.
(g) There are no legal or governmental proceedings pending or, to the
knowledge of such Adviser, threatened against such Adviser or to which any
of its properties is subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them) but are not described as required or that reasonably should
be expected to result in any material adverse change in
10
the condition (financial or other), business, properties, net assets or
results of operations of such Adviser or that reasonably should have a
material adverse effect on the ability of such Adviser to fulfill its
obligations hereunder or under the Fund Agreements to which it is a party
or under the Sub-Advisory Agreement to which it is a party.
(h) Since the date as of which information is given in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them), except as otherwise stated therein, (i) there has been no material
adverse change in the condition (financial or other), business, properties,
net assets or results of operations or business prospects of such Adviser,
whether or not arising from the ordinary course of business and (ii) there
have been no transactions entered into by such Adviser which are material
to such Adviser other than those in the ordinary course of its business as
described in the Prospectus.
(i) Such Adviser has such licenses, permits and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus; such Adviser has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of such Adviser under any such permit.
(j) This Agreement, the Fund Agreements to which such Adviser is a
party and the Sub-Advisory Agreement to which it is a party comply in all
material respects with all applicable provisions of the 1940 Act, the 1940
Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(k) Neither the execution, delivery or performance of this Agreement or
the Fund Agreements by such Adviser which is a party thereto or the
Sub-Advisory Agreement by such Adviser which is a party thereto, nor the
consummation by such Adviser of the transactions contemplated hereby or
thereby (A) requires any consent, approval, authorization or other order of
or registration or filing with the Commission, the NASD, any state
securities commission, any national securities exchange, any arbitrator,
any court or any other governmental, regulatory, self-regulatory or
administrative agency or any official (except compliance with the
securities or Blue Sky laws of various jurisdictions which have been or
will be effected in accordance with this Agreement and except for
compliance with the filing requirements of the NASD Division of Corporate
Finance) or conflicts or will conflict with or constitutes or will
constitute a breach of or a default under, the certificate or articles of
incorporation, by-laws, certificate of formation, limited liability company
agreement, limited liability partnership agreement or other organizational
documents of such Adviser or (B) conflicts or will conflict with or
constitutes or will constitute a breach of or a default under, any material
agreement, indenture, lease or other instrument to which such Adviser is a
party or by which it or any of its properties may be bound or materially
violates or will materially violate any material statute, law, regulation
or filing or judgment, injunction, order or decree applicable to such
Adviser or any of its properties or will result in the creation or
imposition of any material lien, charge or encumbrance upon any property or
assets of
11
such Adviser pursuant to the terms of any agreement or instrument to which
it is a party or by which it may be bound or to which any of the property
or assets of such Adviser is subject.
(l) Except as stated in this Agreement and in the Prospectus (and in
any amendment or supplement thereto), such Adviser has not taken and nor
will it take, directly or indirectly, any action designed to or which
should reasonably be expected to cause or result in or which will
constitute, stabilization or manipulation of the price of the Common Shares
in violation of federal securities laws and such Adviser is not aware of
any such action taken or to be taken by any affiliates of such Adviser.
(m) In the event that the Fund or such Adviser makes available any
promotional materials intended for use only by qualified broker-dealers and
registered representatives thereof by means of an Internet web site or
similar electronic means, in each case under its control or at its
direction, such Adviser will install and maintain pre-qualification and
password-protection or similar procedures which are reasonably designed to
effectively prohibit access to such promotional materials by persons other
than qualified broker-dealers and registered representatives thereof.
3. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Fund
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Fund, at a purchase price of $14.325 per
share, the amount of the Firm Securities set forth opposite such Underwriter's
name in Schedule I hereto (or such number of Firm Securities increased as set
forth in Section 10 hereof).
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Fund hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
6,200,000 Option Securities at the same purchase price per share as the
Underwriters shall pay for the Firm Securities. Said option may be exercised
only to cover over-allotments in the sale of the Firm Securities by the
Underwriters. Said option may be exercised in whole or in part at any time and
from time to time prior to 9:00 P.M., New York City time on or before the 45th
day after the date of the Prospectus (or if such 45th day shall be a Saturday or
a Sunday or a holiday, on the next business day thereafter when the NYSE is open
for trading) upon written or telegraphic notice by the Representatives to the
Fund setting forth the number of shares of the Option Securities as to which the
several Underwriters are exercising the option and the settlement date. The
number of Option Securities to be purchased by each Underwriter shall be the
same percentage of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
Firm Securities, subject to such adjustments as you in your absolute discretion
shall make to eliminate any fractional shares.
4. Delivery and Payment. (a) Delivery of and payment for the Firm
Securities shall be made at the office of Citigroup Global Markets Inc., ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or through the facilities of the
Depository Trust Company or another mutually agreeable facility, at 9:00 A.M.,
New York City time, on March 30, 2004
12
(the "Closing Date"). The place of closing for the Firm Securities and the
Closing Date may be varied by agreement between you and the Fund.
(b) Delivery of and payment for the Option Securities (if the option
provided for in Section 3(b) hereof shall have been exercised) shall be made at
the aforementioned office of Citigroup Global Markets Inc., or through the
facilities of the Depository Trust Company or another mutually agreeable
facility, at such time on such date (an "Option Closing Date"), which may not be
the same as the Closing Date, but shall in no event be earlier than the Closing
Date nor earlier than two nor later than three business days after the giving of
the notice hereinafter referred to, as shall be specified in a written notice
from you on behalf of the Underwriters to the Fund of the Underwriters'
determination to purchase a number, specified in said notice, of Option
Securities. The place of closing for any Option Securities and the Option
Closing Date for such Option Securities may be varied by agreement between you
and the Fund.
(c) The Firm Securities and any Option Securities shall be registered
in such names and in such denominations as you shall request prior to 1:00 P.M.,
New York City time, (i) in respect of the Firm Securities, on the second
business day preceding the Closing Date and (ii) in respect of Option
Securities, on the day of the giving of the written notice in respect of such
Option Securities. The Firm Securities and any Option Securities to be purchased
hereunder shall be delivered to you on the Closing Date or the Option Closing
Date, as the case may be, through the facilities of the Depository Trust Company
or another mutually agreeable facility, against payment of the purchase price
therefor in immediately available funds to the order of the Fund.
5. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public upon the
terms set forth in the Prospectus.
6. Agreements of the Fund and Certain Advisers. The Fund, the
Investment Adviser and the Subadviser, jointly and severally, agree with the
several Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective under the Act before the offering of the
Firm Securities may commence, the Fund will use its reasonable best efforts
to cause the Registration Statement or such post-effective amendment to
become effective under the Act as soon as possible. If the Registration
Statement has become effective and the Prospectus contained therein omits
certain information at the time of effectiveness pursuant to Rule 430A of
the Act Rules and Regulations, the Fund will file a Prospectus including
such information pursuant to Rule 497(h) of the Act Rules and Regulations,
as promptly as practicable, but no later than the second business day
following the earlier of the date of the determination of the offering
price of the Securities or the date the Prospectus is first used after the
effective date of the Registration Statement. If the Registration Statement
has become effective and the Prospectus contained therein does not so omit
such information, the Fund will file a Prospectus pursuant to Rule 497(c)
or (j) of the Act Rules and Regulations as promptly as practicable, but no
later than the fifth business day following the date of the later of the
effective date of the Registration Statement or the commencement of the
public offering
13
of the Securities after the effective date of the Registration Statement.
The Fund will advise you promptly and, if requested by you, will confirm
such advice in writing (i) when the Registration Statement or such
post-effective amendment has become effective or (ii) when the Prospectus
has been timely filed pursuant to Rule 497(c) or Rule 497(h) of the Act
Rules and Regulations or the certification permitted pursuant to Rule
497(j) of the Act Rules and Regulations has been timely filed, whichever is
applicable.
(b) The Fund will advise you promptly and, if requested by you, will
confirm such advice in writing: (i) of any request made by the Commission
for amendment of or a supplement to the Registration Statement, any
Preliminary Prospectus or the Prospectus (or any amendment or supplement to
any of the foregoing) or for additional information, (ii) of the issuance
by the Commission, the National Association of Securities Dealers, Inc.
(the "NASD"), any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official of any order
suspending the effectiveness of the Registration Statement, prohibiting or
suspending the use of the Prospectus, any Preliminary Prospectus or any
sales material (as hereinafter defined), of any notice pursuant to Section
8(e) of the 1940 Act, of the suspension of qualification of the Securities
for offering or sale in any jurisdiction, or the initiation or contemplated
initiation of any proceeding for any such purposes, (iii) of receipt by the
Fund, the Advisers, any affiliate of the Fund or the Advisers or any
representative or attorney of the Fund or the Advisers of any other
material communication from the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court or
any other governmental, regulatory, self-regulatory or administrative
agency or any official relating to the Fund (if such communication relating
to the Fund is received by such person within three years after the date of
this Agreement), the Registration Statement, the 1940 Act Notification, the
Prospectus, any Preliminary Prospectus, any sales material (as hereinafter
defined) (or any amendment or supplement to any of the foregoing), this
Agreement or any of the Fund Agreements and (iv) within the period of time
referred to in paragraph (f) below, of any material adverse change in the
condition (financial or other), business, prospects, properties, net assets
or results of operations of the Fund or the Advisers or of the happening of
any event which makes any statement of a material fact made in the
Registration Statement, the Prospectus, any Preliminary Prospectus or any
sales material (as hereinafter defined) (or any amendment or supplement to
any of the foregoing) untrue or which requires the making of any additions
to or changes in the Registration Statement, the Prospectus, any
Preliminary Prospectus or any sales materials (as hereinafter defined) (or
any amendment or supplement to any of the foregoing) in order to state a
material fact required by the Act, the 1940 Act or the Rules and
Regulations to be stated therein or necessary in order to make the
statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading or of the
necessity to amend or supplement the Registration Statement, the
Prospectus, any Preliminary Prospectus or any sales material (as
hereinafter defined) (or any amendment or supplement to any of the
foregoing) to comply with the Act, the 1940 Act, the Rules and Regulations
or any other law or order of any court or regulatory body. If at any time
the Commission, the NASD, any state securities commission, any national
securities exchange, any arbitrator, any court or any other governmental,
regulatory, self-regulatory or administrative agency or
14
any official shall issue any order suspending the effectiveness of the
Registration Statement, prohibiting or suspending the use of the
Prospectus, any Preliminary Prospectus or any sales material (as
hereinafter defined) (or any amendment or supplement to any of the
foregoing) or suspending the qualification of the Securities for offering
or sale in any jurisdiction, the Fund will use its reasonable best efforts
to obtain the withdrawal of such order at the earliest possible time.
(c) The Fund will furnish to you, without charge, three signed copies
of the registration statement and the 1940 Act Notification as originally
filed with the Commission and of each amendment thereto, including
financial statements and all exhibits thereto (except any post-effective
amendment required by Rule 8b-16 of the 1940 Act Rules and Regulations
which is filed with the Commission after the later of (x) one year from the
date of this Agreement and (y) the date on which the distribution of the
Securities is completed) and will also furnish to you, without charge, such
number of conformed copies of the registration statement as originally
filed and of each amendment thereto (except any post-effective amendment
required by Rule 8b-16 of the 1940 Act Rules and Regulations which is filed
with the Commission after the later of (x) one year from the date of this
Agreement and (y) the date on which the distribution of the Securities is
completed), with or without exhibits, as you may reasonably request.
(d) The Fund will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus, any
Preliminary Prospectus or any sales material (as hereinafter defined) (or
any amendment or supplement to any of the foregoing) of which you shall not
previously have been advised or to which you shall reasonably object within
a reasonable time after being so advised or (ii) so long as, in the opinion
of counsel for the Underwriters, a Prospectus is required to be delivered
in connection with sales by any Underwriter or dealer, file any
information, documents or reports pursuant to the Exchange Act, without
delivering a copy of such information, documents or reports to you, as
Representatives of the Underwriters, prior to or concurrently with such
filing.
(e) Prior to the execution and delivery of this Agreement, the Fund has
delivered to you, without charge, in such quantities as you have reasonably
requested, copies of each form of any Preliminary Prospectus. The Fund
consents to the use, in accordance with the provisions of the Act and with
the securities or Blue Sky laws of the jurisdictions in which the
Securities are offered by the several Underwriters and by dealers, prior to
the date of the Prospectus, of each Preliminary Prospectus so furnished by
the Fund.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time, for such period as in the
opinion of counsel for the Underwriters a prospectus is required by the Act
to be delivered in connection with sales of Securities by any Underwriter
or dealer, the Fund will expeditiously deliver to each Underwriter and each
dealer, without charge, as many copies of the Prospectus (and of any
amendment or supplement thereto) as you may reasonably request. The Fund
consents to the use of the Prospectus (and of any amendments or supplements
thereto) in accordance with the provisions of the Act and with the
securities or Blue Sky laws of the
15
jurisdictions in which the Securities are offered by the several
Underwriters and by all dealers to whom Securities may be sold, both in
connection with the offering or sale of the Securities and for such period
of time thereafter as the Prospectus is required by law to be delivered in
connection with sales of Securities by any Underwriter or dealer. If during
such period of time any event shall occur that in the judgment of the Fund
or in the opinion of counsel for the Underwriters is required to be set
forth in the Prospectus (as then amended or supplemented) or should be set
forth therein in order to make the statements therein, in light of the
circumstances under which they were made, not misleading or if it is
necessary to supplement or amend the Prospectus to comply with the Act, the
1940 Act, the Rules and Regulations or any other law, rule or regulation,
the Fund will forthwith prepare and, subject to the provisions of paragraph
(d) above, file with the Commission an appropriate amendment or supplement
thereto and will expeditiously furnish to the Underwriters and dealers,
without charge, such number of copies thereof as they shall reasonably
request. In the event that the Prospectus is to be amended or supplemented,
the Fund, if requested by you, will promptly issue a press release
announcing or disclosing the matters to be covered by the proposed
amendment or supplement.
(g) The Fund will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the
Securities for offering and sale by the several Underwriters and by dealers
under the securities or Blue Sky laws of such jurisdictions as you may
designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall the Fund be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action which would subject it to service of process in
suits, other than those arising out of the offering or sale of the
Securities, in any jurisdiction where it is not now so subject.
(h) The Fund will make generally available to its security holders an
earnings statement, which need not be audited, covering a twelve-month
period commencing after the effective date of the Registration Statement
and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which earnings statement shall satisfy the
provisions of Section 11(a) of the Act and Rule 158 of the Act Rules and
Regulations.
(i) The Fund will comply with the undertaking set forth in paragraph 6
of Item 33 of Part C of the Registration Statement.
(j) During the period of five years hereafter, the Fund will furnish to
you (i) as soon as available, a copy of each report of the Fund mailed to
shareholders or filed with the Commission and (ii) from time to time such
other information concerning the Fund as you may reasonably request.
(k) The Fund agrees to pay the following costs and expenses and all
other costs and expenses incident to the performance by the Fund of its
obligations hereunder: (i) the preparation, printing or reproduction,
filing (including, without limitation, the filing fees prescribed by the
Act, the 1940 Act and the Rules and Regulations) and
16
distribution of the Registration Statement (including exhibits thereto),
the Prospectus, each Preliminary Prospectus and the 1940 Act Notification
and all amendments or supplements to any of them, (ii) printing (or
reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Registration
Statement, the Prospectus, each Preliminary Prospectus, any sales material
and all amendments or supplements to any of them as may be reasonably
requested for use in connection with the offering and sale of the
Securities, (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Securities, including any stamp taxes and
transfer agent and registrar fees payable in connection with the original
issuance and sale of such Securities, (iv) the registrations or
qualifications of the Securities for offer and sale under the securities or
Blue Sky laws of the several states as provided in Section 6(g) hereof
(including the reasonable fees, expenses and disbursements of counsel for
the Underwriters relating to the preparation, printing or reproduction and
delivery of the preliminary and supplemental Blue Sky Memoranda and such
registration and qualification), (v) the transportation and other expenses
incurred by or on behalf of Fund representatives in connection with
presentations to prospective purchasers of the Securities, (vi) the fees
and expenses of the Fund's independent accountants, counsel for the Fund
and of the transfer agent, (vii) the expenses of delivery to the
Underwriters and dealers (including postage, air freight and the cost of
counting and packaging) of copies of the Prospectus, the Preliminary
Prospectus, any sales material and all amendments or supplements to the
Prospectus as may be requested for use in connection with the offering and
sale of the Securities, (viii) the printing (or reproduction) and delivery
of this Agreement, any dealer agreements, the preliminary and supplemental
Blue Sky Memoranda and all other company-authorized agreements or other
documents printed (or reproduced) and delivered in connection with the
offering of the Securities, (ix) the filing fees and the fees and expenses
of counsel for the Underwriters in connection with any filings required to
be made with the NASD and incurred with respect to the review of the
offering of the Securities by the NASD, (x) the registration of the
Securities under the Exchange Act and the listing of the Securities on the
NYSE and (xi) an amount equal to (A) $20,000 plus (B) $0.0025 per Security
for each Security in excess of 2,000,000 sold pursuant to this Agreement,
payable no later than 45 days from the date of this Agreement to the
Underwriters in partial reimbursement of their expenses (but not including
reimbursement for the cost of one tombstone advertisement in a newspaper
that is one quarter of a newspaper page or less in size) in connection with
the offering. Notwithstanding the foregoing, in the event that the sale of
the Firm Securities is not consummated pursuant to Section 3 hereof, the
Advisers will pay the costs and expenses of the Fund set forth above in
clauses (i) through (x) of this Section 6(k), and reimbursements of
Underwriter expenses in connection with the offering shall be made in
accordance with Section 8 hereof.
(l) The Fund will direct the investment of the net proceeds of the
offering of the Securities in such a manner as to comply with the
investment objectives, policies and restrictions of the Fund as described
in the Prospectus.
(m) The Fund will file the requisite copies of the Prospectus with the
Commission in a timely fashion pursuant to Rule 497(c) or Rule 497(h) of
the Act Rules and Regulations, whichever is applicable or, if applicable,
will file in a timely fashion the
17
certification permitted by Rule 497(j) of the Act Rules and Regulations and
will advise you of the time and manner of such filing.
(n) Except as provided in this Agreement or pursuant to any dividend
reinvestment plan of the Fund in effect on the date hereof, neither the
Fund nor the Advisers will sell, contract to sell or otherwise dispose of
or hedge, any Common Shares or any securities convertible into or
exercisable or exchangeable for Common Shares or grant any options or
warrants to purchase Common Shares, for a period of 180 days after the date
of the Prospectus, without the prior written consent of Citigroup Global
Markets Inc.
(o) Except as stated in this Agreement and in the Prospectus, neither
the Fund nor the Advisers have taken, nor will any of them take, directly
or indirectly, any action designed to or that might reasonably be expected
to cause or result in stabilization or manipulation of the price of the
Common Shares.
(p) The Fund will use its reasonable best efforts to have the Common
Shares listed, subject to notice of issuance, on the NYSE concurrently with
the effectiveness of the Registration Statement and to comply with the
rules and regulations of such exchange.
7. Conditions to the Obligations of the Underwriters. The several
obligations of the Underwriters to purchase any Securities hereunder are subject
to the accuracy of and compliance with the representations, warranties and
agreements of and by the Fund and the Advisers contained herein on and as of the
date hereof, the date on which the Registration Statement becomes or became
effective, the date of the Prospectus (and of any amendment or supplement
thereto), the Closing Date and, with respect to any Option Securities, any
Option Closing Date; to the accuracy and completeness of all statements made by
the Fund, the Advisers or any of their officers in any certificate delivered to
the Representatives or their counsel pursuant to this Agreement and to the
following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Securities may
commence, the Registration Statement or such post-effective amendment shall
have become effective not later than 5:30 p.m., New York City time, on the
date hereof or at such later date and time as shall be consented to in
writing by you and all filings, if any, required by Rules 497 and 430A
under the Act Rules and Regulations shall have been timely made; no order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceeding for that purpose shall have been instituted or, to
the knowledge of the Fund, the Advisers or any Underwriter, threatened by
the Commission and any request of the Commission for additional information
(to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to your satisfaction.
(b) You shall have received on the Closing Date an opinion of ▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇ LLC, special counsel for the Fund and the Investment Adviser,
dated the Closing
18
Date and addressed to you, as Representatives of the several Underwriters,
to the effect that:
(i) The Fund is a business trust duly established, validly
existing and in good standing under the laws of The Commonwealth of
Massachusetts with full power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto through the date of the opinion) and is duly
registered and qualified to conduct its business and is in good
standing in each jurisdiction where the nature of its properties or
the conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify
does not have a material adverse effect on the condition (financial
or other), business, properties, net assets or results of operations
of the Fund;
(ii) The authorized and outstanding capital stock of the Fund
is as set forth in the Registration Statement and Prospectus (or any
amendment or supplement thereto through the date of the opinion); and
the description of the authorized capital stock of the Fund contained
in the Prospectus (or any amendment or supplement thereto through the
date of the opinion) under the caption "Description of Shares"
conforms in all material respects as to legal matters to the terms
thereof contained in the Fund's Declaration of Trust;
(iii) All of the shares of capital stock of the Fund
outstanding prior to the issuance of the Securities have been duly
authorized and validly issued and are fully paid and nonassessable,
except that, as described in the Prospectus under the heading,
"Certain Provisions in the Declaration of Trust," shareholders of the
Fund may under certain circumstances be held personally liable for
its obligations;
(iv) The Securities have been duly authorized and, when
issued and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will be validly issued, fully paid
and nonassessable and not subject to any preemptive rights that
entitle or will entitle any person to acquire any Securities upon the
issuance thereof by the Fund, except that, as described in the
Prospectus under the heading, "Certain Provisions in the Declaration
of Trust," shareholders of the Fund may under certain circumstances be
held personally liable for its obligations;
(v) The Fund has the power and authority to enter into this
Agreement and the Fund Agreements and to issue, sell and deliver the
Securities to the Underwriters as provided herein and this Agreement
and each of the Fund Agreements have been duly authorized, executed
and delivered by the Fund;
(vi) Assuming due authorization, execution and delivery by
the other parties thereto and that the performance of the Fund
Agreements by such other parties will not violate law, agreements to
which such other parties or their properties are subject or orders
applicable to such other parties, the Fund
19
Agreements constitute the valid, legal and binding agreements of the
Fund, enforceable against the Fund in accordance with their terms,
subject to the qualification that the enforceability of the Fund's
obligations thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles,
whether enforcement is considered in a proceeding in equity or at
law;
(vii) The Fund Agreements comply in all material respects
with all applicable provisions of the Act, the 1940 Act, the Advisers
Act, the Rules and Regulations and the Advisers Act Rules and
Regulations;
(viii) The Fund is not in violation of its Declaration of
Trust or By-Laws or, to the best knowledge of such counsel after
reasonable inquiry, is not in material default in the performance of
any material obligation, agreement or condition contained in any
bond, debenture, note or other evidence of indebtedness, except as
may be disclosed in the Prospectus (and any amendment or supplement
thereto);
(ix) No consent, approval, authorization or order of or
registration or filing with the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental body, agency or
regulatory, self-regulatory or administrative agency or any official
is required on the part of the Fund (except as have been obtained
under the Act and the Exchange Act or such as may be required under
state securities or Blue Sky laws governing the purchase and
distribution of the Securities) for the valid issuance and sale of
the Securities to the Underwriters as contemplated by this Agreement,
performance of the Fund Agreements or this Agreement by the Fund, the
consummation by the Fund of the transactions contemplated thereby or
hereby or the adoption of the Fund's Dividend Reinvestment Plan;
(x) Neither the offer, sale or delivery of the Securities,
the execution, delivery or performance of this Agreement or the Fund
Agreements, compliance by the Fund with the provisions hereof or
thereof, consummation by the Fund of the transactions contemplated
hereby or thereby nor the adoption of the Fund's Dividend
Reinvestment Plan violates the Declaration of Trust or By-Laws of the
Fund or any material agreement, indenture, lease or other instrument
to which the Fund is a party or by which it or any of its properties
is bound that is an exhibit to the Registration Statement or that is
known to such counsel after reasonable inquiry or, to the best of
such counsel's knowledge after reasonable inquiry, will result in the
creation or imposition of any material lien, charge or encumbrance
upon any property or assets of the Fund, nor, to the best of such
counsel's knowledge after reasonable inquiry, will any such action
result in any violation of any existing material law, regulation,
ruling (assuming compliance with all applicable state securities and
Blue Sky laws), judgment, injunction, order or decree known to such
counsel after reasonable inquiry, applicable to the Fund or any of
its properties, except that, in the published opinion of the
Commission, the indemnification provisions in this Agreement and the
Fund Agreements, insofar
20
as they relate to indemnification for liabilities arising under the
Act, are against public policy as expressed in the Act and therefore
unenforceable;
(xi) The Registration Statement and all post-effective
amendments, if any, have become effective under the Act and, to the
best knowledge of such counsel after reasonable inquiry, no order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose are pending before or
contemplated by the Commission; and any filing of the Prospectus and
any amendments or supplements thereto required pursuant to Rule 497
of the Act Rules and Regulations prior to the date of such opinion
has been made in accordance with Rule 497;
(xii) The Fund is duly registered with the Commission under
the 1940 Act as a closed-end, diversified management investment
company and all action has been taken by the Fund as required by the
Act and the 1940 Act and the Rules and Regulations in connection with
the issuance and sale of the Securities to make the public offering
and consummate the sale of the Securities as contemplated by this
Agreement;
(xiii) The statements made in the Registration Statement and
the Prospectus (and any amendment or supplement thereto through the
date of the opinion) under the caption "Tax Matters" and "Certain
Provisions in the Declaration of Trust" have been reviewed by such
counsel and to the extent they describe or summarize tax laws,
doctrines or practices of the United States, legal matters,
agreements, documents or proceedings discussed therein present a fair
and accurate description or summary thereof as of the date of the
opinion;
(xiv) The statements in the Registration Statement and
Prospectus (and any amendment or supplement thereto through the date
of the opinion), insofar as they are descriptions of contracts,
agreements or other legal documents or refer to statements of law or
legal conclusions, are accurate and present fairly the information
required to be shown;
(xv) The Registration Statement and the Prospectus (and any
amendment or supplement thereto through the date of the opinion)
comply as to form in all material respects with the requirements of
the Act, the 1940 Act and the Rules and Regulations (except that no
opinion need be expressed as to the financial statements and the
notes thereto and the schedules and other financial and statistical
data included therein);
(xvi) To the best knowledge of such counsel after reasonable
inquiry, (A) other than as described or contemplated in the
Prospectus (or any amendment or supplement thereto through the date
of the opinion), there are no actions, suits or other legal or
governmental proceedings pending or expressly threatened against the
Fund (through the date of the opinion) and (B) there are no material
agreements, contracts, indentures, leases or other instruments that
are required to be described in the Registration Statement or the
Prospectus (or any amendment
21
or supplement thereto through the date of the opinion) or to be filed
as an exhibit to the Registration Statement that are not described or
filed as required, as the case may be;
(xvii) To the best knowledge of such counsel after reasonable
inquiry, the Fund is not in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to the
Fund or of any decree of the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official having
jurisdiction over the Fund; and
(xviii) The Securities are duly authorized for listing, subject
to official notice of issuance, on the NYSE and the Fund's
registration statement on Form 8-A under the Exchange Act is
effective.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement and the
Prospectus (and any amendment or supplement thereto), such counsel has
participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof, and
nothing has come to the attention of such counsel that has caused it to
believe that the Registration Statement, at the time the Registration
Statement became effective or the Prospectus, as of its date and as of the
Closing Date, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make
the statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading or that any
amendment or supplement to the Prospectus, as of the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no view with respect to the
financial statements and the notes thereto and the schedules and other
financial and statistical data included in, or omitted from, the
Registration Statement or the Prospectus (or any amendment or supplement
thereto)).
In rendering such opinion, such counsel may limit such opinion to
matters involving the application of the laws of The Commonwealth of
Massachusetts and the United States. To the extent they deem proper and to
the extent specified in such opinion, such counsel may rely, as to matters
involving the application of laws of The Commonwealth of Massachusetts,
upon the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP or other counsel of good standing
whom they believe to be reliable and who are satisfactory to the
Representatives; provided that (X) such reliance is expressly authorized by
the opinion so relied upon and a copy of each such opinion is delivered to
the Representatives and is, in form and substance, satisfactory to them and
their counsel and (Y) ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLC states in their opinion that
they believe that they and the Underwriters are justified in relying
thereon. References to the Prospectus in this paragraph (b) shall also
include any supplements thereto at the Closing Date.
22
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Assistant Secretary and Assistant General Counsel for the
Investment Adviser, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) The Investment Adviser is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
Delaware with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto) and is duly registered and qualified to conduct
its business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure
so to register or to qualify does not have a material adverse effect
on the condition (financial or other), business, properties, net
assets or results of operations of the Investment Adviser;
(ii) The Investment Adviser is duly registered with the
Commission under the Advisers Act as an investment adviser and is not
prohibited by the Advisers Act, the 1940 Act or the Rules and
Regulations under such acts from acting for the Fund under the
Management Agreement as contemplated by the Prospectus (and any
amendment or supplement thereto);
(iii) The Investment Adviser has corporate power and authority to
enter into this Agreement, the Management Agreement and the
Sub-Advisory Agreement and this Agreement, the Management Agreement
and the Sub-Advisory Agreement have been duly authorized, executed and
delivered by the Investment Adviser and each of the Management
Agreement and the Sub-Advisory Agreement is a valid, legal and binding
agreement of the Investment Adviser, enforceable against the
Investment Adviser in accordance with its terms, subject to the
qualification that the enforceability of the Investment Adviser's
obligations thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles;
(iv) Each of the Management Agreement and the Sub-Advisory
Agreement complies in all material respects with all applicable
provisions of the Advisers Act, the 1940 Act and the Advisers Act
Rules and Regulations and the 1940 Act Rules and Regulations;
(v) Neither the execution and delivery by the Investment Adviser
of this Agreement, the Management Agreement or the Sub-Advisory
Agreement nor the consummation by the Investment Adviser of the
transactions contemplated hereunder or thereunder constitutes or will
constitute a breach of or a default under the Certificate of
Incorporation or By-Laws of the Investment Adviser or any material
agreement, indenture, lease or other instrument to which the
Investment Adviser is a party or by which it or any of its properties
is bound that is known to such counsel after reasonable inquiry, or
will result in the creation or
23
imposition of any material lien, charge or encumbrance upon any
property or assets of the Investment Adviser, nor will any such action
result in any violation of any existing material law, regulation,
ruling (assuming compliance with all applicable state securities and
Blue Sky laws), judgment, injunction, order or decree known to such
counsel after reasonable inquiry, applicable to the Fund or any of its
properties;
(vi) The description of the Investment Adviser and its business
in the Prospectus (and any amendment or supplement thereto) complies
in all material respects with all requirements of the Act, the 1940
Act and the Rules and Regulations;
(vii) To the best knowledge of such counsel after reasonable
inquiry, other than as described or contemplated in the Prospectus
(and any amendment or supplement thereto), there are no actions, suits
or other legal or governmental proceedings pending or threatened
against the Investment Adviser or to which the Investment Adviser or
any of its property is subject which are required to be described in
the Registration Statement or Prospectus (or any amendment or
supplement thereto);
(viii) The Investment Adviser owns, possesses or has obtained and
currently maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations as are necessary for the
Investment Adviser to carry on its business as contemplated in the
Prospectus (and any amendment or supplement thereto); and
(ix) No material consent, approval, authorization or order of or
registration or filing with any court, regulatory body, administrative
or other governmental body, agency or official is required on the part
of the Investment Adviser for the performance of this Agreement, the
Management Agreement or the Sub-Advisory Agreement by the Investment
Adviser or for the consummation by the Investment Adviser of the
transactions contemplated hereby or thereby.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in its opinion, to determine
independently and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement and the
Prospectus (and any amendment or supplement thereto), such counsel has
participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof and
nothing has come to its attention that has caused it to believe that the
Registration Statement at the time it became effective or the Prospectus,
as of its date and as of the Closing Date, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading or that any amendment or supplement to the Prospectus, as of the
Closing Date, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading
(it
24
being understood that such counsel need express no opinion with respect to
the financial statements and the notes thereto and the schedules and other
financial and statistical data included in, or omitted from, the
Registration Statement or the Prospectus (or any amendment or supplement
thereto)).
In rendering such opinion, counsel may limit such opinion to matters
involving the application of the laws of the State of Illinois, the
Delaware General Corporation Law statute and the laws of the United States
and may rely upon an opinion or opinions, each dated the Closing Date, of
other counsel retained by the Investment Adviser as to laws of any
jurisdiction other than the United States, the State of Illinois and the
Delaware General Corporation Law statute, provided that (X) each such local
counsel is acceptable to the Representatives, (Y) such reliance is
expressly authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Representatives and is, in form and substance,
satisfactory to them and their counsel and (Z) counsel shall state in his
view that he believes that he and the Underwriters are justified in relying
thereon.
(d) You shall have received on the Closing Date an opinion of ▇▇▇▇ ▇.
Berkshire, special counsel for the Subadviser, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, to the
effect that:
(i) The Subadviser is a limited liability company duly formed and
validly existing in good standing under the laws of the State of
California with full company power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto) and is duly registered and qualified to conduct
its business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure
so to register or to qualify does not have a material adverse effect
on the condition (financial or other), business, properties, net
assets or results of operations of the Subadviser;
(ii) The Subadviser is duly registered with the Commission under
the Advisers Act as an investment adviser and is not prohibited by the
Advisers Act, the 1940 Act or the rules and regulations promulgated by
the Commission under such acts from acting for the Fund under the
Sub-Advisory Agreement as contemplated by the Prospectus (and any
amendment or supplement thereto);
(iii) The Subadviser has company power and authority to enter
into this Agreement and the Sub-Advisory Agreement and this Agreement
and the Sub-Advisory Agreement have been duly authorized, executed and
delivered by the Subadviser and the Sub-Advisory Agreement is a valid,
legal and binding agreement of the Subadviser, enforceable against the
Subadviser in accordance with its terms, subject to the qualification
that the enforceability of the Subadviser's obligations thereunder may
be limited by bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and by
general equitable principles;
25
(iv) The Sub-Advisory Agreement complies in all material respects
with all applicable provisions of the Advisers Act, the 1940 Act and
the Advisers Act Rules and Regulations and the 1940 Act Rules and
Regulations;
(v) Neither the execution and delivery by the Subadviser of this
Agreement or the Sub-Advisory Agreement nor the consummation by the
Subadviser of the transactions contemplated hereunder or thereunder
constitutes or will constitute a breach of or a default under the
Certificate of Formation or limited liability company agreement of the
Subadviser or any material agreement, indenture, lease or other
instrument to which the Subadviser is a party or by which it or any of
its properties is bound that is known to such counsel after reasonable
inquiry, or will result in the creation or imposition of any material
lien, charge or encumbrance upon any property or assets of the
Subadviser, nor will any such action result in any violation of any
existing material law, regulation, ruling (assuming compliance with
all applicable state securities and Blue Sky laws), judgment,
injunction, order or decree known to such counsel after reasonable
inquiry, applicable to the Subadviser or any of its properties;
(vi) The description of the Subadviser and its business in the
Prospectus (and any amendment or supplement thereto) complies in all
material respects with all requirements of the Act, the 1940 Act and
the Rules and Regulations;
(vii) To the best knowledge of such counsel after reasonable
inquiry, other than as described or contemplated in the Prospectus
(and any amendment or supplement thereto), there are no actions, suits
or other legal or governmental proceedings pending or threatened
against the Subadviser or to which the Subadviser or any of its
property is subject that are required to be described in the
Registration Statement or Prospectus (or any amendment or supplement
thereto);
(viii) The Subadviser owns, possesses or has obtained and
currently maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations as are necessary for the
Subadviser to carry on its business as contemplated in the Prospectus
(and any amendment or supplement thereto); and
(ix) No material consent, approval, authorization or order of or
registration or filing with any court, regulatory body, administrative
or other governmental body, agency or official is required on the part
of the Subadviser for the performance of this Agreement or the
Sub-Advisory Agreement by the Subadviser or for the consummation by
the Subadviser of the transactions contemplated hereby or thereby.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in its opinion, to determine
independently and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement and the
Prospectus (and any amendment or supplement thereto), such counsel has
participated in the preparation of the Registration Statement and the
Prospectus,
26
including review and discussion of the contents thereof and nothing has
come to its attention that has caused it to believe that the Registration
Statement at the time it became effective or the Prospectus, as of its date
and as of the Closing Date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus, in
light of the circumstances under which they were made) not misleading or
that any amendment or supplement to the Prospectus, as of the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements and the notes thereto and the schedules and other
financial and statistical data included in, or omitted from, the
Registration Statement or the Prospectus (or any amendment or supplement
thereto)).
In rendering such opinion, counsel may limit such opinion to matters
involving the application of the laws of the United States and may rely
upon an opinion or opinions, each dated the Closing Date, of other counsel
retained by the Subadviser as to laws of any jurisdiction other than the
United States, provided that (X) each such local counsel is acceptable to
the Representatives, (Y) such reliance is expressly authorized by each
opinion so relied upon and a copy of each such opinion is delivered to the
Representatives and is, in form and substance, satisfactory to them and
their counsel and (Z) counsel shall state in their view that they believe
that they and the Underwriters are justified in relying thereon.
(e) That you shall have received on the Closing Date, an opinion,
dated the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the
Underwriters, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, with respect to the issuance
and sale of the Securities, the Registration Statement, the Prospectus
(together with any supplement thereto) and other related matters as the
Underwriters may require and the Fund, the Advisers and their respective
counsels shall have furnished to such counsel such documents as they may
request for the purpose of enabling them to pass upon such matters.
(f) That you shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and
the Closing Date from Ernst & Young LLP, independent certified public
accountants, substantially in the forms heretofore approved by you.
(g) (i) No order suspending the effectiveness of the Registration
Statement or prohibiting or suspending the use of the Prospectus (or any
amendment or supplement thereto) or any Preliminary Prospectus or any sales
material shall have been issued and no proceedings for such purpose or for
the purpose of commencing an enforcement action against the Fund, the
Advisers or, with respect to the transactions contemplated by the
Prospectus (or any amendment or supplement thereto) and this Agreement, any
Underwriter, may be pending before or, to the knowledge of the Fund, the
Advisers or any Underwriter or in the reasonable view of counsel to the
Underwriters, shall be threatened or contemplated by the Commission at or
prior to the Closing Date and that
27
any request for additional information on the part of the Commission (to be
included in the Registration Statement, the Prospectus or otherwise) be
complied with to the satisfaction of the Representatives, (ii) there shall
not have been any change in the capital stock of the Fund nor any material
increase in debt of the Fund from that set forth in the Prospectus (and any
amendment or supplement thereto) and the Fund shall not have sustained any
material liabilities or obligations, direct or contingent, other than those
reflected in the Prospectus (and any amendment or supplement thereto);
(iii) since the date of the Prospectus there shall not have been any
material adverse change in the condition (financial or other), business,
prospects, properties, net assets or results of operations of the Fund or
the Advisers; (iv) the Fund and the Advisers must not have sustained any
material loss or interference with its business from any court or from
legislative or other governmental action, order or decree or from any other
occurrence not described in the Registration Statement and the Prospectus
(and any amendment or supplement thereto); and (v) all of the
representations and warranties of the Fund and the Advisers contained in
this Agreement shall be true and correct on and as of the date hereof and
as of the Closing Date as if made on and as of the Closing Date.
(h) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change or any development involving a prospective
change in or affecting the condition (financial or other), business,
prospects, properties, net assets or results of operations of the Fund or
the Advisers not contemplated by the Prospectus (and any amendment or
supplement thereto), which in your opinion, as Representatives of the
several Underwriters, would materially, adversely affect the market for the
Securities or (ii) any event or development relating to or involving the
Fund, the Advisers or any officer or trustee or director of the Fund or the
Advisers which makes any statement of a material fact made in the
Prospectus (or any amendment or supplement thereto) untrue or which, in the
opinion of the Fund and its counsel or the Underwriters and their counsel,
requires the making of any addition to or change in the Prospectus (or any
amendment or supplement thereto) in order to state a material fact required
by the Act, the 1940 Act, the Rules and Regulations or any other law to be
stated therein or necessary in order to make the statements therein (in the
case of a prospectus, in light of the circumstances under which they were
made) not misleading, if amending or supplementing the Prospectus (or any
amendment or supplement thereto) to reflect such event or development
would, in your opinion, as Representatives of the several Underwriters,
materially, adversely affect the market for the Securities.
(i) That neither the Fund nor the Advisers shall have failed at or
prior to the Closing Date to have performed or complied with any of the
agreements herein contained and required to be performed or complied with
by them at or prior to the Closing Date.
(j) That you shall have received on the Closing Date a certificate,
dated such date, of the president, any managing director or any vice
president and of the controller, treasurer or assistant treasurer of each
of the Fund, the Investment Adviser and the Subadviser certifying that (i)
the signers have carefully examined the Registration Statement, the
Prospectus (and any amendments or supplements thereto) and this Agreement
(with respect to the certificates of such officers of the Fund, the
Investment Adviser and the Subadviser), (ii) the representations and
warranties of the Fund (with
28
respect to the certificates from such Fund officers) and the
representations of the Advisers (with respect to the certificates from such
officers of the Advisers) in this Agreement are true and correct on and as
of the date of the certificate as if made on such date, (iii) since the
date of the Prospectus (and any amendment or supplement thereto) there has
not been any material adverse change in the condition (financial or other),
business, prospects (other than as a result of a change in the financial
markets generally), properties, net assets or results of operations of the
Fund (with respect to the certificates from such Fund officers) or the
Advisers (with respect to the certificates from such officers of the
Advisers), (iv) with respect to the certificates from such Fund officers
and the certificates from such officers of the Investment Adviser and the
Subadviser, to the knowledge of such officers after reasonable
investigation, no order suspending the effectiveness of the Registration
Statement or prohibiting the sale of any of the Securities or having a
material adverse effect on the Fund has been issued and no proceedings for
any such purpose are pending before or threatened by the Commission or any
court or other regulatory body, the NASD, any state securities commission,
any national securities exchange, any arbitrator or any other governmental,
regulatory, self-regulatory or administrative agency or any official, (v)
each of the Fund (with respect to certificates from such Fund officers) and
the Advisers (with respect to certificates from such officers of the
Advisers) has performed and complied with all agreements that this
Agreement requires it to perform by such Closing Date, (vi) neither the
Fund (with respect to the certificate from such officers of the Fund) nor
the Advisers (with respect to the certificate from such officers of the
Advisers) has sustained any material loss or interference with its business
from any court or from legislative or other governmental action, order or
decree or from any other occurrence not described in the Registration
Statement and the Prospectus and any amendment or supplement thereto and
(vii) with respect to the certificate from such officers of the Fund, there
has not been any change in the capital stock of the Fund nor any material
increase in the debt of the Fund from that set forth in the Prospectus (and
any amendment or supplement thereto) and the Fund has not sustained any
material liabilities or obligations, direct or contingent, other than those
reflected in the Prospectus (and any amendment or supplement thereto).
(k) The Securities shall have been listed and admitted and authorized
for trading on the NYSE, and satisfactory evidence of such actions shall
have been provided to the Representatives.
(l) That the Fund and the Advisers shall have furnished to you such
further certificates, documents and opinions of counsel as you shall
reasonably request (including certificates of officers of the Fund and the
Advisers).
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are satisfactory in
form and substance to you and your counsel acting in good faith.
Any certificate or document signed by any officer of the Fund or the
Advisers and delivered to you, as Representatives of the Underwriters or to
Underwriters' counsel, shall be deemed a representation and warranty by
such party to each Underwriter as to the statements made therein.
29
The several obligations of the Underwriters to purchase any Option
Securities hereunder are subject to (i) the accuracy of and compliance with
the representations, warranties and agreements of and by the Fund and the
Advisers contained herein on and as of the Option Closing Date, as though
made on any Option Closing Date, the date on which the Registration
Statement becomes or became effective and the date of the Prospectus (and
any amendment or supplement thereto) (ii) satisfaction on and as of any
Option Closing Date of the conditions set forth in this Section 7 except
that, if any Option Closing Date is other than the Closing Date, the
certificates, opinions and letters referred to in paragraphs (b), (c), (d),
(e), (f), (j), (k) and this paragraph shall be dated the Option Closing
Date in question and the opinions and letters called for by paragraphs (b),
(c), (d), (e), (f), and this paragraph shall be revised to reflect the sale
of Option Securities, (iii) the accuracy and completeness of all statements
made by the Fund, the Advisers or any of their officers in any certificate
delivered to the Representatives or their counsel pursuant to this
Agreement and (iv) the absence of circumstances on or prior to the Option
Closing Date which would permit termination of this Agreement pursuant to
Section 11 hereof if they existed on or prior to the Closing Date.
8. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Fund or the
Advisers to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Fund will
reimburse the Underwriters severally through Citigroup Global Markets Inc. on
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
9. Indemnification and Contribution. (a) The Fund, the Investment
Adviser, and the Subadviser, jointly and severally, agree to indemnify and hold
harmless each of you and each other Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several (including
reasonable costs of investigation), to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus, any Preliminary
Prospectus, any sales material (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, any Preliminary
Prospectus or any sales material (or any amendment or supplement to any of the
foregoing), in light of the circumstances under which they were made) not
misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Fund will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Fund by or on behalf of any Underwriter
30
through the Representatives specifically for inclusion therein; provided,
further, that the foregoing indemnity with respect to the Registration
Statement, the Prospectus or any Preliminary Prospectus (or any amendment or
supplement to any of the foregoing) shall not inure to the benefit of any
Underwriter from whom the person asserting any loss, claim, damage or liability
purchased Securities, if it is shown that a copy of the Prospectus, as then
amended or supplemented, which would have cured any defect giving rise to such
loss, claim, damage or liability was not sent or delivered to such person by or
on behalf of such Underwriter, if required by law to be so delivered to, at or
prior to the confirmation of the sale of such Securities to such person and such
Prospectus, amendments and supplements have been provided by the Fund to the
Underwriters in the requisite quantity and on a timely basis to permit proper
delivery. This indemnity agreement will be in addition to any liability which
the Fund, the Investment Adviser or the Subadviser may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold
harmless the Fund and the Advisers, each of its directors, trustees, each of its
officers who signs the Registration Statement, and each person who controls the
Fund or the Advisers within the meaning of the Act or the Exchange Act, to the
same extent as the indemnity from the Fund, the Investment Adviser and the
Subadviser to each Underwriter as set forth in Section 9(a) hereof, but only
with respect to written information relating to such Underwriter furnished to
the Fund by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Fund and the Advisers acknowledge that
the names of the underwriters and number of Shares listed opposite such names in
the first paragraph under the caption "Underwriting" in the Prospectus, as well
as, under the same caption, the last sentence of the second paragraph, the first
sentence of the eleventh paragraph, the first sentence of the thirteenth
paragraph and the eighteenth paragraph, constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in any Preliminary Prospectus or the Prospectus.
(C) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying
31
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 9 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, then the Fund, the Advisers and the Underwriters shall
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Fund, the Advisers and one
or more of the Underwriters may be subject in such proportion as is appropriate
to reflect the relative benefits received by the Fund and the Advisers on the
one hand and by the Underwriters on the other from the offering of the
Securities; provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Fund, the Advisers and the
Underwriters severally shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the Fund
and the Advisers on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Fund and the Advisers shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses) received by the Fund and the Advisers,
and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Prospectus. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Fund or the Advisers on the one hand or
the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Fund, the Advisers 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 or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (f), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For
32
purposes of this Section 9, each person who controls an Underwriter within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each person who controls the Fund or the Advisers
within the meaning of either the Act or the Exchange Act, each officer of the
Fund and the Advisers who shall have signed the Registration Statement and each
director of the Fund and the Advisers shall have the same rights to contribution
as the Fund and the Advisers, subject in each case to the applicable terms and
conditions of this paragraph (f). The Underwriters' obligations to contribute
pursuant to this Section 9 are several in proportion to the respective number of
Firm Securities set forth opposite their names in Schedule I (or such numbers of
Firm Securities increased as set forth in Section 10 hereof) and not joint.
(e) Any losses, claims, damages or liabilities for which an indemnified
party is entitled to indemnification or contribution under this Section 9 shall
be paid by the indemnifying party to the indemnified party as such losses,
claims, damages or liabilities are incurred. The indemnity and contribution
agreements contained in this Section 9 and the representations and warranties of
the Fund and the Advisers set forth in this Agreement shall remain operative and
in full force and effect, regardless of (i) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter, the Fund,
the Advisers or their shareholders, trustees, directors, managers, members or
officers or any person controlling the Fund or the Advisers (control to be
determined within the meaning of the Act or the Exchange Act), (ii) acceptance
of any Securities and payment therefor hereunder and (iii) any termination of
this Agreement. A successor to any Underwriter or to the Fund, the Advisers or
their shareholders, trustees, directors, managers, members or officers or any
person controlling any Underwriter, the Fund or the Advisers shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 9.
10. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters or in
such other proportion as you may specify in accordance with the Citigroup Global
Markets Inc. Master Agreement Among Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Securities set forth in Schedule I hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the Fund.
In the event of a default by any Underwriter as set forth in this Section 10
which does not result in a termination of this Agreement, the Closing Date shall
be postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Fund and any
nondefaulting Underwriter for damages
33
occasioned by its default hereunder. The term "Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Fund,
purchases Firm Securities which a defaulting Underwriter agreed, but failed or
refused, to purchase.
11. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, without liability on the part of the
Underwriters to the Fund or the Advisers, by notice given to the Fund or the
Advisers prior to delivery of and payment for the Securities, if at any time
prior to such time (i) trading in the Fund's Common Shares shall have been
suspended by the Commission or the NYSE or trading in securities generally on
the NYSE shall have been suspended or limited or minimum prices shall have been
established on the NYSE, (ii) a commercial banking moratorium shall have been
declared either by Federal or New York State authorities or (iii) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war, or other calamity or crisis the
effect of which on financial markets in the United States is such as to make it,
in the sole judgment of the Representatives, impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Prospectus (exclusive of any supplement thereto). Notice of such termination may
be given to the Fund or the Advisers by telegram, facsimile or telephone and
shall be subsequently confirmed by letter.
12. Representations and Indemnities to Survive. The provisions of Sections
8 and 9 hereof shall survive the termination or cancellation of this Agreement.
13. Miscellaneous. Except as otherwise provided in Sections 6, 10 and 11
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (a) if to the Fund or the Investment Advisor, c/o
Nuveen Investments at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇ ▇. Berkshire, (b) if to the Subadviser, at the offices of Symphony Asset
Management, LLC at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or (c) if to you, as Representatives of the Underwriters, at the
office of Citigroup Global Markets Inc. at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Fund, the Advisers, their trustees, directors and officers and
the other controlling persons referred to in Section 9 hereof and their
respective successors and assigns to the extent provided herein and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" or the term "successors and assigns" as used in
this Agreement shall include a purchaser from any Underwriter of any Securities
in his status as such purchaser.
A copy of the Declaration of Trust of the Fund is on file with the
Secretary of State of The Commonwealth of Massachusetts. This Agreement has been
executed on behalf of the Fund by the vice-president of the Fund in such
capacity and not individually and the obligations of the Fund under this
Agreement are not binding upon such officer, any of the trustees or the
shareholders individually but are binding only upon the assets and property of
the Fund.
34
14. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
trustees, directors, employees, agents and controlling persons referred to in
Section 9 hereof, and no other person will have any right or obligation
hereunder.
15. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
16. Counterparts. This Agreement may be signed in one or more counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
17. Headings. The section headings used herein are for convenience only and
shall not affect the construction hereof.
18. Definitions. The terms which follow, when used in this Agreement, shall
have the meanings indicated.
"1940 Act" shall mean the Investment Company Act of 1940, as amended.
"1940 Act Rules and Regulations" shall mean the rules and regulations
of the Commission under the 1940 Act.
"1940 Act Notification" shall mean a notification of registration of
the Fund as an investment company under the 1940 Act on Form N-8A, as the
1940 Act Notification may be amended from time to time.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Act Rules and Regulations" shall mean the rules and regulations of
the Commission under the Act.
"Advisers Act" shall mean the Investment Advisers Act of 1940, as
amended
"Advisers Act Rules and Regulations" shall mean the rules and
regulations adopted by the Commission under the Advisers Act
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
35
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
(including the statement of additional information incorporated by
reference therein) referred to in paragraph 1(a) above and any preliminary
prospectus (including the statement of additional information incorporated
by reference therein) included in the Registration Statement at the
Effective Date that omits Rule 430A Information.
"Prospectus" shall mean the prospectus (including the statement of
additional information incorporated by reference therein) relating to the
Securities that is first filed pursuant to Rule 497 after the Execution
Time or, if no filing pursuant to Rule 497 is required, shall mean the form
of final prospectus (including the statement of additional information
incorporated by reference therein) relating to the Securities included in
the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 430A" and "Rule 462" refer to such rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
"Rule 497" refers to Rule 497(c) or 497(h) under the Act, as
applicable.
"Rules and Regulations" shall mean, collectively, the Act Rules and
Regulations and the 1940 Act Rules and Regulations.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Fund,
the Advisers and the several Underwriters.
Very truly yours,
NUVEEN FLOATING RATE INCOME FUND
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Secretary
NUVEEN INSTITUTIONAL ADVISORY CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Title: Vice President and Assistant Secretary
SYMPHONY ASSET MANAGEMENT, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Operating Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
For itself and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
Number of Firm Securities
Underwriters to be Purchased
------------ ---------------------------
Citigroup Global Markets Inc. ................................3,300,000
Nuveen Investments, LLC ......................................1,900,000
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. ....................................1,900,000
Wachovia Capital Markets, LLC ................................1,900,000
Advest, Inc. .................................................1,900,000
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated ............................1,900,000
J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc. ............................1,900,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC ..................................1,900,000
McDonald Investments Inc., a KeyCorp Company .................1,900,000
▇▇▇▇▇▇▇▇▇▇▇ & Co. Inc. .......................................1,900,000
Quick & ▇▇▇▇▇▇, Inc. A FleetBoston Financial Company .........1,900,000
RBC Capital Markets Corporation ..............................1,900,000
▇▇▇▇ ▇▇▇▇ & Co., Inc. ........................................1,900,000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated .....................1,900,000
SunTrust Capital Markets, Inc. ...............................1,900,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated ........................... 750,000
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co. ........................................ 750,000
Deutsche Bank Securities Inc. ................................ 750,000
▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. .......................................... 750,000
▇▇▇▇▇, ▇▇▇▇▇ & Co. ........................................... 750,000
▇.▇. ▇▇▇▇▇ & Co., LLC ........................................ 750,000
TD Waterhouse Investor Services, Inc. ........................ 750,000
Wedbush ▇▇▇▇▇▇ Securities Inc. ............................... 750,000
▇.▇. ▇▇▇▇▇▇▇▇ & Co. .......................................... 500,000
Doft & Co., Inc. ............................................. 500,000
▇▇▇▇▇▇ Investor Services LLC ................................. 500,000
▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇, Inc. ................................. 500,000
Spelman & Co., Inc. .......................................... 500,000
Axiom Capital Management, Inc. ............................... 200,000
BB&T Capital Markets, a division of ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇▇▇▇, Inc. ........................................... 200,000
City Securities Corporation .................................. 200,000
First Montauk Securities Corp. ............................... 200,000
▇▇▇▇ ▇▇▇▇▇▇ Investments, Inc. ................................ 200,000
▇▇▇▇▇▇▇▇, Lemon & Co. Incorporated ........................... 200,000
Lasalle St Securities, L.L.C. ................................ 200,000
Maxim Group LLC .............................................. 200,000
Mesirow Financial, Inc. ...................................... 200,000
National Securities Corporation .............................. 200,000
▇▇▇▇▇▇/▇▇▇▇▇▇ Incorporated ................................... 200,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ................................... 200,000
Sands Brothers & Co., Ltd. ................................... 200,000
Source Capital Group, Inc. ................................... 200,000
Southwest Securities, Inc. ................................... 200,000
Sterne, Agee & ▇▇▇▇▇, Inc. ................................... 200,000
▇▇▇▇▇▇▇▇▇▇ Securities, Inc. .................................. 200,000
---------------------------
Total: 41,800,000