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FIRST TRUST DYNAMIC EUROPE EQUITY INCOME FUND
__________ Common Shares of Beneficial Interest
$20.00 per Share
UNDERWRITING AGREEMENT
Dated: [ ], 2015
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TABLE OF CONTENTS
Page
SECTION 1. Representations and Warranties....................................3
SECTION 2. Sale and Delivery to Underwriters; Closing.......................18
SECTION 3. Covenants of the Fund, the Adviser and the Sub-Adviser...........20
SECTION 4. Payment of Expenses..............................................23
SECTION 5. Conditions of Underwriters' Obligations..........................23
SECTION 6. Indemnification..................................................29
SECTION 7. Contribution.....................................................31
SECTION 8. Representations, Warranties and Agreements
to Survive Delivery..............................................33
SECTION 9. Termination of Agreement.........................................33
SECTION 10. Default by One or More of the Underwriters.......................34
SECTION 11. Notices..........................................................34
SECTION 12. Parties..........................................................35
SECTION 13. GOVERNING LAW....................................................35
SECTION 14. Effect of Headings...............................................35
SECTION 15. Definitions......................................................35
SECTION 16. Absence of Fiduciary Relationship................................37
SECTION 17. Disclaimer of Liability of Trustees
and Beneficiaries................................................38
EXHIBITS
Exhibit A - Initial Securities to be Sold
Exhibit B - Form of Opinion of Fund Counsel
Exhibit C - Form of Opinion of Adviser Counsel
Exhibit D - Form of Opinion of Sub-Advisers Counsel
Exhibit E - Form of Opinion of Sub-Sub-Adviser Counsel
Exhibit F - Form of Opinion of Sub-Advisers Counsel
Exhibit G - Price-Related Information
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FIRST TRUST DYNAMIC EUROPE EQUITY INCOME FUND
[ ] Common Shares of Beneficial Interest
UNDERWRITING AGREEMENT
[ ], 2015
▇▇▇▇▇ Fargo Securities, LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC
UBS Securities LLC
As Representatives of the several Underwriters
listed on Exhibit A hereto
c/o Wells Fargo Securities, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
First Trust Dynamic Europe Equity Income Fund, a Massachusetts business
trust (the "Fund"), First Trust Advisors L.P., an Illinois limited partnership
(the "Adviser"), ▇▇▇▇▇▇▇▇▇ Global Investors (North America) Inc., a Delaware
corporation (the "Investment Sub-Adviser"), and ▇▇▇▇▇▇▇▇▇ Investment Management
Limited, a limited liability company in England and Wales (the
"Sub-Sub-Adviser," and, together with the Investment Sub-Adviser, each a
"Sub-Adviser") confirm their respective agreements with ▇▇▇▇▇ Fargo Securities,
LLC ("▇▇▇▇▇ Fargo") and each of the other Underwriters named in Exhibit A hereto
(collectively, the "Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom ▇▇▇▇▇ Fargo,
Morgan Stanley & Co. LLC and UBS Securities LLC are acting as representatives
(in such capacity, the "Representatives"), with respect to the issue and sale by
the Fund of a total of [ ] common shares of beneficial interest,
par value $0.01 per share (the "Initial Securities"), and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of
Initial Securities set forth in said Exhibit A hereto, and with respect to the
grant by the Fund to the Underwriters, acting severally and not jointly, of the
option described in Section 2(b) hereof to purchase all or any part of [
] additional common shares of beneficial interest, par value $0.01 per
share (the "Option Securities"), to cover over-allotments, if any. The Initial
Securities to be purchased by the Underwriters and all or any part of the Option
Securities are hereinafter called, collectively, the "Securities." Certain terms
used in this Agreement are defined in Section 15 hereof.
The Fund understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
The Fund has entered into (i) an Investment Management Agreement with the
Adviser dated as of [ ], 2015, (ii) a Custodian Services Agreement
with ▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇ & Co. dated as of [ ], 2015, (iii) a
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Transfer Agency Services Agreement Computershare Trust Company, N.A. dated as of
[ ], 2015, (iv) an Administration and Accounting Services Agreement
with ▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇ & Co. dated as of [ ], 2015, (v) a
Subscription Agreement with First Trust Portfolios L.P. dated as of [
], 2015, (vi) an Investment Sub-Advisory Agreement with the Adviser and
the Investment Sub-Adviser dated as of [ ], 2015, and (vii) an
Investment Sub-Sub-Advisory Agreement with the Adviser, the Investment
Sub-Adviser and the Sub-Sub Adviser dated as of [ ], 2015, and such
agreements are herein referred to as the "Investment Management Agreement," the
"Custodian Agreement," the "Transfer Agency Agreement," the "Administration
Agreement," the "Subscription Agreement," the "Sub-Advisory Agreement" and the
"Sub-Sub-Advisory Agreement" respectively. In addition, the Fund has adopted a
dividend reinvestment plan pursuant to which holders of common shares of
beneficial interest shall have their dividends or distributions automatically
reinvested in additional common shares of beneficial interest of the Fund unless
they elect to receive such dividends in cash, and such plan is herein referred
to as the "Dividend Reinvestment Plan." Collectively, the Investment Management
Agreement, the Custodian Agreement, the Transfer Agency Agreement, the
Administration Agreement, the Subscription Agreement, the Sub-Advisory
Agreement, the Sub-Sub-Advisory Agreement and the Dividend Reinvestment Plan are
herein referred to as the "Fund Agreements." The Adviser, the Investment
Sub-Adviser and the Sub-Sub-Adviser have entered into a Structuring Fee
Agreement with ▇▇▇▇▇ Fargo dated as of [ ], 2015, a Structuring Fee
Agreement with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, dated as of [ ], 2015, a
Structuring Fee Agreement with UBS Securities LLC dated as of [ ],
2015, a Structuring Fee Agreement with RBC Capital Markets, LLC dated as of
[ ], 2015, and [ ] Fee Agreement with [ ]
dated as of [ ], 2015 and such agreements are herein referred to as
and the "Fee Agreements."
The Fund has prepared and filed with the Commission a registration
statement (File Nos. 333-205681 and 811-23072) on Form N-2, including a related
preliminary prospectus (including the statement of additional information
incorporated by reference therein), for registration under the 1933 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 the registration statement, a further
amendment to the 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 the 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 or incorporated by reference in the Registration
Statement, as amended at the effective date, all information (other than Rule
430A Information) required by the 1933 Act and the 1940 Act and the Rules and
Regulations to be included in the registration statement and the Prospectus. As
filed, such amendment and form of final prospectus (including the statement of
additional information incorporated by reference therein), or such final
prospectus (including the statement of additional information incorporated by
reference therein), 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 Applicable Time or, to the extent not
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completed at the Applicable 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 Applicable Time, will be
included or made therein.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Fund, the Adviser and the
Sub-Advisers. The Fund, the Adviser and the Sub-Advisers, jointly and severally,
represent and warrant to each Underwriter as of the date hereof, as of the
Applicable Time, as of the Closing Date referred to in Section 2(c) hereof, and
as of each Option Closing Date (if any) referred to in Section 2(b) hereof, and
agree with each Underwriter, as follows:
(1) Compliance with Registration Requirements. The Securities have
been duly registered under the 1933 Act and the 1940 Act, pursuant to the
Registration Statement. Each of the Initial Registration Statement and any
Rule 462(b) Registration Statement has become effective under the 1933 Act
and has been filed under the 1940 Act, and no stop order suspending the
effectiveness of the Initial Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act or the 1940 Act,
and no proceedings for any such purpose have been instituted or are
pending or, to the knowledge of the Fund, the Adviser or a Sub-Adviser,
are contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with. The
Preliminary Prospectus and the Prospectus complied when filed with the
Commission in all material respects with the applicable requirements of
the 1933 Act, the 1940 Act and the Rules and Regulations. The Preliminary
Prospectus and the Prospectus and any amendments or supplements thereto
delivered to the Underwriters for use in connection with the offering of
the Securities each was identical to the electronically transmitted copy
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
At the respective times the Initial Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became or become effective and at the Closing Date (and, if any Option
Securities are purchased, at the applicable Option Closing Date), the
Initial Registration Statement, any Rule 462(b) Registration Statement
will, and the 1940 Act Notification when originally filed with the
Commission and any amendments and supplements thereto did or will, comply
in all material respects with the applicable requirements of the 1933 Act,
the 1940 Act and the 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 not misleading. Neither the Prospectus nor any amendments or
supplements thereto, as of its date, at the Closing Date (and, if any
Option Securities are purchased, at the applicable Option Closing Date),
and at any time when a prospectus is required by applicable law to be
delivered in connection with sales of Securities, included or will include
an untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
Preliminary Prospectus and the information included on Exhibit G hereto,
all considered together (collectively, the "General Disclosure Package")
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did not or will not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Fund makes no representations or
warranties as to the information contained in or omitted from the
Preliminary Prospectus or the Prospectus in reliance upon and in
conformity with information furnished in writing to the Fund by or on
behalf of any Underwriter specifically for inclusion therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 6(b)
hereof.
The Fund's registration statement on Form 8-A under the 1934 Act is
effective.
(2) Independent Accountants. Deloitte & Touche LLP who certified and
audited the financial statements and supporting schedules included in the
Registration Statement, the Preliminary Prospectus and the Prospectus is
an independent public accountant as required by the 1933 Act, the 1940 Act
and the Rules and Regulations.
(3) Financial Statements. The financial statements of the Fund
included in the Registration Statement, the Preliminary Prospectus and the
Prospectus, together with the related schedules (if any) and notes,
present fairly the financial position of the Fund at the dates indicated
and the results of operations and cash flows of the Fund for the periods
specified; and all such financial statements have been prepared in
conformity with GAAP applied on a consistent basis throughout the periods
involved and comply with all applicable accounting requirements under the
1933 Act, the 1940 Act and the Rules and Regulations. The supporting
schedules, if any, included in the Registration Statement present fairly,
in accordance with GAAP, the information required to be stated therein,
and the other financial and statistical information and data included in
the Registration Statement, the Preliminary Prospectus and the Prospectus
are accurately derived from such financial statements and the books and
records of the Fund.
(4) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Preliminary Prospectus and
the Prospectus, except as otherwise stated therein, (A) there has been no
Fund Material Adverse Effect, (B) there have been no transactions entered
into by the Fund which are material with respect to the Fund other than
those in the ordinary course of its business as described in the
Preliminary Prospectus and the Prospectus and (C) there has been no
dividend or distribution of any kind declared, paid or made by the Fund on
any class of its Common Stock.
(5) Good Standing of the Fund. 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 and has the full power and authority to
own, lease and operate its properties and to conduct its business as
described in the Registration Statement, the Preliminary Prospectus and
the Prospectus and to enter into and perform its obligations under this
Agreement and the Fund Agreements; and the Fund is duly qualified to
transact business and is in good standing under the laws of each
jurisdiction which requires qualification, except to the extent that the
failure to be qualified or in good standing could not reasonably be
expected to have a Fund Material Adverse Effect.
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(6) No Subsidiaries. The Fund has no subsidiaries.
(7) Investment Company Status. The Fund is duly registered as a
closed-end, non-diversified management investment company under the 1940
Act, the 1940 Act Rules and Regulations, and the 1940 Act Notification has
been duly filed with the Commission. 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.
(8) Officers and Trustees. No person is serving or acting as an
officer, trustee or investment adviser of the Fund except in accordance
with the provisions of the 1940 Act and the Rules and Regulations and the
Advisers Act. Except as disclosed in the Registration Statement, the
Preliminary Prospectus and the Prospectus, no trustee of the Fund is (A)
an "interested person" (as defined in the ▇▇▇▇ ▇▇▇) of the Fund or (B) an
"affiliated person" (as defined in the ▇▇▇▇ ▇▇▇) of any Underwriter. For
purposes of this Section 1(a)(8), the Fund, the Adviser and each
Sub-Adviser shall be entitled to rely on representations from such
officers and trustees.
(9) Capitalization. The authorized, issued and outstanding common
shares of beneficial interest of the Fund are as set forth in the
Preliminary Prospectus and in the Prospectus. All issued and outstanding
common shares of beneficial interest of the Fund have been duly authorized
and validly issued and are fully paid and non-assessable and have been
offered and sold or exchanged by the Fund in compliance with all
applicable laws (including, without limitation, federal and state
securities laws); none of the outstanding common shares of beneficial
interest of the Fund was issued in violation of the preemptive or other
similar rights of any securityholder of the Fund; the Securities have been
duly and validly authorized and, when issued and delivered to and paid for
by the Underwriters pursuant to this Agreement, will be fully paid and
nonassessable, except that, as set forth in the Registration Statement,
the Preliminary Prospectus and the Prospectus, shareholders of a
Massachusetts business trust may under certain circumstances be held
personally responsible for the obligations of the Fund; and the
certificates for the Securities, if any, are in valid and sufficient form.
(10) Power and Authority. The Fund has full power and authority to
enter into this Agreement and the Fund Agreements; the execution and
delivery of, and the performance by the Fund of its obligations under this
Agreement and the Fund Agreements have been duly and validly authorized by
the Fund; and this Agreement and the Fund Agreements have been duly
executed and delivered by the Fund and constitute the valid and legally
binding agreements of the Fund, enforceable against the Fund in accordance
with their terms, except as rights to indemnity and contribution 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, fraudulent conveyance and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
5
(11) Approval of Investment Management Agreement, Sub-Advisory
Agreement and Sub-Sub-Advisory Agreement. The Fund's Board of Trustees and
the Fund's sole shareholder have approved the Investment Management
Agreement, the Sub-Advisory Agreement and the Sub-Sub-Advisory Agreement
in accordance with Section 15 of the 1940 Act.
(12) Agreements' Compliance with Law. This Agreement, each of the
Fund Agreements and the Fund's Organizational Documents 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.
(13) Absence of Defaults and Conflicts. The Fund is not (i) in
violation of its Organizational Documents, (ii) in breach or default in
the performance of the terms of any indenture, contract, lease, mortgage,
declaration of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or
bound or to which its property is subject or (iii) in violation of any
law, ordinance, administrative or governmental rule or regulation
applicable to the Fund or of any decree of the Commission, FINRA, any
state securities commission, any foreign 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.
(14) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Fund, threatened, against or affecting the Fund which is required to
be disclosed in the Preliminary Prospectus and Prospectus (other than as
disclosed therein), or that could reasonably be expected to result in a
Fund Material Adverse Effect, or that could reasonably be expected to
materially and adversely affect the properties or assets of the Fund or
the consummation of the transactions contemplated in this Agreement or the
performance by the Fund of its obligations under this Agreement or the
Fund Agreements; the aggregate of all pending legal or governmental
proceedings to which the Fund is a party or of which any of its property
or assets is the subject which are not described in the Preliminary
Prospectus or the Prospectus or to be filed as an exhibit to the
Registration Statement that are not described or filed as required by the
1933 Act, the 1940 Act or the Rules and Regulations, including ordinary
routine litigation incidental to the business, could not reasonably be
expected to result in a Fund Material Adverse Effect.
(15) Accuracy of Descriptions and Exhibits. The statements set forth
under the headings "Description of Shares," "Certain Provisions in the
Declaration of Trust and By-Laws" and "Federal Tax Matters" in the
Preliminary Prospectus and the Prospectus and "Description of Shares,"
"Repurchase of Fund Shares; Conversion to Open-End Fund" and "Federal
Income Tax Matters" in the Statement of Additional Information, insofar as
such statements purport to summarize certain provisions of the 1940 Act,
Massachusetts law, the Fund's Organizational Documents, U.S. federal
income tax law and regulations or legal conclusions with respect thereto,
fairly and accurately summarize such provisions in all material respects;
all descriptions in the Registration Statement, the Preliminary Prospectus
and the Prospectus of any Fund documents are accurate in all material
respects; and there are no franchises, contracts, indentures, mortgages,
deeds of trust, loan or credit agreements, bonds, notes, debentures,
evidences of indebtedness, leases or other instruments or agreements
required to be described or referred to in the Registration Statement, the
6
Preliminary Prospectus or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required by the
1933 Act, the 1940 Act or the Rules and Regulations which have not been so
described and filed as required.
(16) Absence of Further Requirements. (A) No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, and (B) no authorization, approval, vote or other
consent of any other person or entity, is necessary or required for the
performance by the Fund of its obligations under this Agreement or the
Fund Agreements, for the offering, issuance, sale or delivery of the
Securities hereunder, or for the consummation of any of the other
transactions contemplated by this Agreement or the Fund Agreements, in
each case on the terms contemplated by the Registration Statement, the
Preliminary Prospectus and the Prospectus, except such as have been
already obtained and under the 1933 Act, the 1940 Act, the Rules and
Regulations, the rules and regulations of FINRA and the NYSE and such as
may be required under state securities laws.
(17) Non-Contravention. Neither the execution, delivery or
performance of this Agreement, the Fund Agreements nor the consummation by
the Fund of the transactions herein or therein contemplated (i) conflicts
or will conflict with or constitutes or will constitute a breach of the
Organizational Documents of the Fund, (ii) conflicts or will conflict with
or constitutes or will constitute a breach of or a default under, any
agreement, indenture, lease or other instrument to which the Fund is a
party or by which it or any of its properties may be bound or (iii)
violates or will violate any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Fund or any of its
properties or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Fund pursuant to
the terms of any agreement or instrument to which the Fund is a party or
by which the Fund may be bound or to which any of the property or assets
of the Fund is subject.
(18) Possession of Licenses and Permits. 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 Preliminary Prospectus and the
Prospectus, except to the extent that the absence of such Permits would
not have a Fund Material Adverse Effect; 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 Preliminary
Prospectus and the Prospectus, except to the extent that such revocation,
termination or impairment would not have a Fund Material Adverse Effect;
7
and, except as described in the Preliminary Prospectus and the Prospectus,
none of such Permits contains any restriction that is materially
burdensome to the Fund.
(19) Distribution of Offering Material. 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 any
offering material in connection with the offering and sale of the
Securities other than the Registration Statement, the Preliminary
Prospectus, the Prospectus, the Sales Material (as defined below) or other
materials permitted by the 1933 Act, the 1940 Act or the Rules and
Regulations.
(20) Absence of Registration Rights. There are no persons with
registration rights or other similar rights to have any securities (debt
or equity) (A) registered pursuant to the Registration Statement or
included in the offering contemplated by this Agreement or (B) otherwise
registered by the Fund under the 1933 Act or the 1940 Act. There are no
persons with tag-along rights or other similar rights to have any
securities (debt or equity) included in the offering contemplated by this
Agreement or sold in connection with the sale of Securities by the Fund
pursuant to this Agreement.
(21) NYSE. The Securities are duly listed and admitted and
authorized for trading, subject to official notice of issuance and
evidence of satisfactory distribution, on the NYSE. The Fund's Board of
Trustees has validly appointed an audit committee whose composition
satisfies the requirements of Rules 303A.06 and 303A.07(a) of the NYSE
Listed Company Manual and the Board of Trustees and/or the audit committee
has adopted a charter that satisfies the requirements of Rule 303A.07(b)
of the NYSE Listed Company Manual.
(22) FINRA Matters. All of the information provided to the
Underwriters or to counsel for the Underwriters by the Fund, the Adviser,
the Sub-Advisers and the Fund's officers and trustees in connection with
letters, filings or other supplemental information provided to FINRA
pursuant to FINRA's conduct rules is true, complete and correct.
(23) Tax Returns. The Fund has filed all tax returns, if any, that
are required to be filed and has paid all taxes required to be paid by it
and any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such tax,
assessment, fine or penalty that is currently being contested in good
faith by appropriate actions and except for such taxes, assessments, fines
or penalties the nonpayment of which would not, individually or in the
aggregate, have a Fund Material Adverse Effect.
(24) Subchapter M. The Fund is currently in compliance with the
requirements of Subchapter M of the Internal Revenue Code of 1986, as
amended (the "Code") to qualify as a regulated investment company under
the Code and intends to direct the investment of the net proceeds of the
offering of the Securities in such a manner as to comply with the
requirements of Subchapter M of the Code.
(25) Insurance. The Fund is insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts
8
as are prudent and customary in the businesses in which it is engaged and
which the Fund deems adequate; all policies of insurance insuring the Fund
or its business, assets, employees, officers and trustees, including its
fidelity bond required by Rule 17g-1 of the 1940 Act Rules and Regulations
and the Fund's trustees and officers/errors and omissions insurance
policy, are in full force and effect; the Fund is in compliance with the
terms of such fidelity bond and policy in all material respects; and there
are no claims by the Fund under any such fidelity bond or policy as to
which any insurance company is denying liability or defending 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 Fund Material Adverse Effect, except as set forth in or contemplated in
the Preliminary Prospectus and Prospectus (exclusive of any supplement
thereto).
(26) Accounting Controls and Disclosure Controls. The Fund maintains
a system of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management's general or specific authorizations and with the investment
objectives, policies and restrictions of the Fund and the applicable
requirements of the 1940 Act, the 1940 Act Rules and Regulations and the
Code; (B) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP, to calculate net asset
value, to maintain accountability for assets and to maintain material
compliance with applicable books and records requirements under the 1940
Act and the 1940 Act Rules and Regulations; (C) access to assets is
permitted only in accordance with management's general or specific
authorization; and (D) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences. The Fund employs "internal control
over financial reporting" (as such term is defined in Rule 30a-3 under the
▇▇▇▇ ▇▇▇) and such internal control over financial reporting is and shall
be effective as required by applicable 1940 Act and the 1940 Act Rules and
Regulations. The Fund is not aware of any material weakness in its
internal control over financial reporting. The Fund employs "disclosure
controls and procedures" (as such term is defined in Rule 30a-3 under the
1940 Act); such disclosure controls and procedures are effective as
required by applicable 1940 Act Rules and Regulations.
(27) Compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. There is and has been
no failure on the part of the Fund or any of the Fund's trustees or
officers, in their capacities as such, to comply with any provision of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations promulgated in connection
therewith, including Sections 302 and 906 related to certifications,
applicable to the Fund.
(28) Fund Compliance with Policies and Procedures. The Fund has
adopted and implemented written policies and procedures reasonably
designed to prevent violation of the Federal Securities Laws (as that term
is defined in Rule 38a-1 under the ▇▇▇▇ ▇▇▇) by the Fund, including
policies and procedures that provide oversight of compliance for each
investment adviser, administrator and transfer agent of the Fund. The Fund
has appointed a Chief Compliance Officer in compliance with Rule 38a-1.
9
(29) Absence of Manipulation. The Fund has not taken and will not
take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security to facilitate
the sale or resale of the Securities, and the Fund is not aware of any
such action taken or to be taken by any affiliates of the Fund, other than
such actions as taken by the Underwriters that are affiliates of the Fund,
so long as such actions are in compliance with all applicable law.
(30) Statistical, Demographic or Market-Related Data. Any
statistical, demographic or market-related data included in the
Registration Statement, the Preliminary Prospectus, the Sales Material (as
defined below) or the Prospectus is based on or derived from sources that
the Fund believes to be reliable and accurate and all such data included
in the Registration Statement, the Preliminary Prospectus, the Sales
Material or the Prospectus accurately reflects the materials upon which it
is based or from which it was derived.
(31) Advertisements. All advertising, sales literature or other
promotional material (including, but not limited to, advertisements
pursuant to Rule 482 of the 1933 Act Rules and Regulations, "prospectus
wrappers", "broker kits", "broker-only" or "financial adviser only" guides
or materials, web-based promotional material (whether for potential
investors or financial professionals only), "road show slides" and "road
show scripts"), whether in printed or electronic form, authorized in
writing by or prepared by or at the direction of the Fund, the Adviser or
a Sub-Adviser for use in connection with the offering and sale of the
Securities (collectively, "Sales Material") are identified in Schedule I
hereto and complied and comply in all material respects with the
applicable requirements of the 1933 Act, the 1940 Act, the Rules and
Regulations and the rules and interpretations of FINRA and if required to
be filed with FINRA under FINRA's conduct rules were so filed and were
reviewed by FINRA. No Sales Material contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(32) Foreign Corrupt Practices Act. Neither the Fund nor, to the
knowledge of the Fund, any trustee, officer, agent, employee, affiliate or
other person acting on behalf of the Fund is aware of or has taken any
action, directly or indirectly, that has resulted or would result in a
violation by such persons of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder (collectively, the
"FCPA"), including, without limitation, making use of the mails or any
means or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the payment of
any money, or other property, gift, promise to give, or authorization of
the giving of anything of value to any "foreign official" (as such term is
defined in the FCPA) or any foreign political party or official thereof or
any candidate for foreign political office, in contravention of the FCPA,
and the Fund and, to the knowledge of the Fund, its other affiliates have
conducted their businesses in compliance with the FCPA and have instituted
and maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance therewith.
10
(33) Money Laundering Laws. The operations of the Fund are and have
been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all applicable jurisdictions, the rules and regulations
thereunder and any related or similar applicable rules, regulations or
guidelines, issued, administered or enforced by any governmental agency
(collectively, "Money Laundering Laws") and no action, suit or proceeding
by or before any court or governmental agency, authority or body or any
arbitrator involving the Fund with respect to the Money Laundering Laws is
pending or, to the knowledge of the Fund, threatened.
(34) OFAC. Neither the Fund nor, to the knowledge of the Fund, any
trustee, officer, agent, employee, affiliate or person acting on behalf of
the Fund is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department ("OFAC");
and the Fund will not directly or indirectly use any of the proceeds
received by the Fund from the sale of Securities contemplated by this
Agreement, or lend, contribute or otherwise make available any such
proceeds to any subsidiary, joint venture partner or other person or
entity, for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC.
(b) Representations and Warranties by the Adviser. The Adviser represents
and warrants to each Underwriter as of the date hereof, as of the Applicable
Time, as of the Closing Date and as of each Option Closing Date (if any), and
agrees with each Underwriter, as follows:
(1) Adviser Status. The 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 Investment Management Agreement or
the Fee Agreements as contemplated by the Preliminary Prospectus and the
Prospectus.
(2) Capitalization. The Adviser has the financial resources
available to it necessary for the performance of its services and
obligations as contemplated in the Preliminary Prospectus and the
Prospectus and under this Agreement, the Investment Management Agreement
and the Fee Agreements.
(3) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Preliminary Prospectus and
the Prospectus, except as otherwise stated therein, (A) there has been no
Adviser Material Adverse Effect and (B) there have been no transactions
entered into by the Adviser which are material with respect to the Adviser
other than those in the ordinary course of its business as described in
the Preliminary Prospectus and the Prospectus.
(4) Good Standing. The Adviser has been duly formed and is validly
existing in good standing as a limited partnership under the laws of the
State of Illinois and has the full power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement, the Preliminary Prospectus and the Prospectus and
to enter into and perform its obligations under this Agreement and the Fee
Agreements; and the Adviser is duly qualified to transact business and is
in good standing under the laws of each jurisdiction which requires
qualification, except to the extent that the failure to be qualified or in
11
good standing could not reasonably be expected to have an Adviser Material
Adverse Effect.
(5) Power and Authority. The Adviser has full power and authority to
enter into this Agreement, the Investment Management Agreement, the
Sub-Advisory Agreement, the Sub-Sub-Advisory Agreement and the Fee
Agreements; the execution and delivery of, and the performance by the
Adviser of its obligations under this Agreement, the Investment Management
Agreement, the Sub-Advisory Agreement, the Sub-Sub-Advisory Agreement and
the Fee Agreements have been duly and validly authorized by the Adviser;
and this Agreement, the Investment Management Agreement, the Sub-Advisory
Agreement, the Sub-Sub-Advisory Agreement and the Fee Agreements have been
duly executed and delivered by the Adviser and constitute the valid and
legally binding agreements of the Adviser, enforceable against the Adviser
in accordance with their terms, except as rights to indemnity and
contribution may be limited by federal or state securities laws and
subject to the qualification that the enforceability of the Adviser's
obligations hereunder and thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other
laws relating to or affecting creditors' rights generally and by general
equitable principles.
(6) Description of the Adviser. The description of the Adviser and
its business and the statements attributable to the Adviser in the
Preliminary Prospectus and Prospectus complied and comply in all material
respects with the provisions of the 1933 Act, the 1940 Act, the Advisers
Act, the 1940 Act 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 necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading.
(7) Non-Contravention. Neither the execution, delivery or
performance of this Agreement, the Investment Management Agreement, the
Sub-Advisory Agreement, the Sub-Sub-Advisory Agreement or the Fee
Agreements nor the consummation by the Fund or the Adviser of the
transactions herein or therein contemplated (i) conflicts or will conflict
with or constitutes or will constitute a breach of the Organizational
Documents of the Adviser, (ii) conflicts or will conflict with or
constitutes or will constitute a breach of or a default under, any
agreement, indenture, lease or other instrument to which the Adviser is a
party or by which it or any of its properties may be bound or (iii)
violates or will violate any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Adviser or any of
its properties or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Adviser pursuant
to the terms of any agreement or instrument to which the Adviser is a
party or by which the Adviser may be bound or to which any of the property
or assets of the Adviser is subject.
(8) Agreements' Compliance with Laws. This Agreement, the Investment
Management Agreement, the Sub-Advisory Agreement, the Sub-Sub-Advisory
Agreement and the Fee Agreements comply in all material respects with all
12
applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations,
the Advisers Act and the Advisers Act Rules and Regulations.
(9) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Adviser, threatened, against or affecting the Adviser which is
required to be disclosed in the Preliminary Prospectus and Prospectus
(other than as disclosed therein), or that could reasonably be expected to
result in an Adviser Material Adverse Effect, or that could reasonably be
expected to materially and adversely affect the properties or assets
thereof or the consummation of the transactions contemplated in this
Agreement or the performance by the Adviser of its obligations under this
Agreement, the Investment Management Agreement, the Sub-Advisory
Agreement, the Sub-Sub-Advisory Agreement or the Fee Agreements; the
aggregate of all pending legal or governmental proceedings to which the
Adviser is a party or of which any of its property or assets is the
subject which are not described in the Preliminary Prospectus or the
Prospectus, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in an Adviser
Material Adverse Effect.
(10) Absence of Further Requirements. (A) No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, and (B) no authorization, approval, vote or other
consent of any other person or entity, is necessary or required for the
performance by the Adviser of its obligations under this Agreement, the
Investment Management Agreement, or the Fee Agreements, except such as
have been already obtained under the 1933 Act, the 1940 Act, the Rules and
Regulations, the rules and regulations of FINRA and the NYSE and such as
may be required under state securities laws.
(11) Possession of Permits. The Adviser has such Permits as are
necessary to own its property and to conduct its business in the manner
described in the Preliminary Prospectus and the Prospectus, except to the
extent the absence of such Permits would not have an Adviser Material
Adverse Effect; the Adviser has fulfilled and performed all its material
obligations with respect to such Permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the Adviser under any such Permit.
(12) Adviser Compliance with Policies and Procedures. The Adviser
has adopted and implemented written policies and procedures under Rule
206(4)-7 of the Advisers Act reasonably designed to prevent violation of
the Advisers Act and the Advisers Act Rules by the Adviser and its
supervised persons.
(13) Absence of Manipulation. The Adviser has not taken and will not
take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security to facilitate
the sale or resale of the Securities, and the Adviser is not aware of any
13
such action taken or to be taken by any affiliates of the Adviser, other
than such actions as taken by the Underwriters that are affiliates of the
Adviser, so long as such actions are in compliance with all applicable
law.
(14) Promotional Materials. In the event that the Fund or the
Adviser makes available any promotional materials related to the
Securities or the transactions contemplated hereby intended for use only
by registered broker-dealers and registered representatives thereof by
means of an Internet web site or similar electronic means, the Adviser
will install and maintain, or will cause to be installed and maintained,
pre-qualification and password-protection or similar procedures which are
reasonably designed to effectively prohibit access to such promotional
materials by persons other than registered broker-dealers and registered
representatives thereof.
(15) Internal Controls. The Adviser maintains a system of internal
controls sufficient to provide reasonable assurance that (i) transactions
effectuated by it under the Investment Management Agreement are executed
in accordance with its management's general or specific authorization; and
(ii) access to the Fund's assets is permitted only in accordance with
management's general or specific authorization.
(16) Money Laundering Laws. The operations of the Adviser and its
subsidiaries are and have been conducted at all times in compliance with
applicable Money Laundering Laws and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any
arbitrator involving the Adviser or any of its subsidiaries with respect
to the Money Laundering Laws is pending or, to the knowledge of the
Adviser, threatened.
(17) Foreign Corrupt Practices Act. Neither the Adviser nor, to the
knowledge of the Adviser, any trustee, officer, agent, employee or
affiliate of the Adviser is aware of or has taken any action, directly or
indirectly, that has resulted or would result in a violation by such
persons of the FCPA, including, without limitation, making use of the
mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any "foreign official"
(as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in
contravention of the FCPA, and the Adviser and, to the knowledge of the
Adviser, its affiliates have conducted their businesses in compliance with
the FCPA and have instituted and maintain policies and procedures designed
to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith.
(18) OFAC. Neither the Adviser nor, to the knowledge of the Adviser,
any trustee, director, officer, agent, employee or affiliate of the
Adviser is currently subject to any U.S. sanctions administered by OFAC;
and the Adviser will not cause the Fund, directly or indirectly, to use
any of the proceeds received by the Fund from the sale of Securities
contemplated by this Agreement, or lend, contribute or otherwise make
available any such proceeds to any subsidiary, joint venture partner or
14
other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC.
(c) Representations and Warranties by the Sub-Advisers. Each Sub-Adviser,
jointly and severally, represents and warrants to each Underwriter as of the
date hereof, as of the Applicable Time, as of the Closing Date and as of each
Option Closing Date (if any), and agrees with each Underwriter, as follows:
(1) Adviser Status. Each Sub-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 Sub-Advisory
Agreement, the Sub-Sub-Advisory Agreement or the Fee Agreements to which
it is a party as contemplated by the Preliminary Prospectus and the
Prospectus.
(2) Capitalization. Each Sub-Adviser has the financial resources
available to it necessary for the performance of its services and
obligations as contemplated in the Preliminary Prospectus and the
Prospectus and under this Agreement, the Sub-Advisory Agreement, the
Sub-Sub-Advisory Agreement and the Fee Agreements to which it is a party.
(3) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Preliminary Prospectus and
the Prospectus, except as otherwise stated therein, (A) there has been no
Sub-Adviser Material Adverse Effect and (B) there have been no
transactions entered into by a Sub-Adviser which are material with respect
to such Sub-Adviser other than those in the ordinary course of its
business as described in the Preliminary Prospectus and the Prospectus.
(4) Good Standing. The Investment Sub-Adviser has been duly formed
and is validly existing in good standing as a corporation under the laws
of the State of Delaware and the Sub-Sub-Adviser has been duly formed and
is validly existing in good standing as a limited liability company under
the laws of England and Wales; and each Sub-Adviser has the power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement, the Preliminary
Prospectus and the Prospectus and to enter into and perform its
obligations under this Agreement and the Fee Agreements; and each
Sub-Adviser is duly qualified to transact business and is in good standing
under the laws of each jurisdiction which requires qualification, except
to the extent that the failure to be qualified or in good standing could
not reasonably be expected to have an Adviser Material Adverse Effect
(5) Power and Authority. Each Sub-Adviser has power and authority to
enter into this Agreement, the Sub-Advisory Agreement, the
Sub-Sub-Advisory Agreement and the Fee Agreements to which it a party; the
execution and delivery of, and the performance by each Sub-Adviser of its
obligations under this Agreement, the Sub-Advisory Agreement, the
Sub-Sub-Advisory Agreement and the Fee Agreements to which it is a party
15
have been duly and validly authorized by such Sub-Adviser; and this
Agreement, the Sub-Advisory Agreement, the Sub-Sub-Advisory Agreement and
the Fee Agreements to which it is a party have been duly executed and
delivered by each Sub-Adviser and constitute the valid and legally binding
agreements of such Sub-Adviser, enforceable against such Sub-Adviser in
accordance with their terms, except as rights to indemnity and
contribution may be limited by federal or state securities laws and
subject to the qualification that the enforceability of such Sub-Adviser's
obligations hereunder and thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other
laws relating to or affecting creditors' rights generally and by general
equitable principles.
(6) Description of the Sub-Advisers. The description of each
Sub-Adviser and its business and the statements attributable to the
Sub-Advisers in the Preliminary Prospectus and Prospectus complied and
comply in all material respects with the provisions of the 1933 Act, the
1940 Act, the Advisers Act, the 1940 Act 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
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(7) Non-Contravention. Neither the execution, delivery or
performance of this Agreement, the Sub-Advisory Agreement, the
Sub-Sub-Advisory Agreement or the Fee Agreements to which it is a party
nor the consummation by the Fund or each Sub-Adviser of the transactions
herein or therein contemplated (i) conflicts or will conflict with or
constitutes or will constitute a breach of the Organizational Documents of
such Sub-Adviser, (ii) conflicts or will conflict with or constitutes or
will constitute a breach of or a default under, any agreement, indenture,
lease or other instrument to which such Sub-Adviser is a party or by which
it or any of its properties may be bound or (iii) violates or will violate
any statute, law, regulation or filing or judgment, injunction, order or
decree applicable to such Sub-Adviser or any of its properties or will
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of such Sub-Adviser pursuant to the terms of
any agreement or instrument to which such Sub-Adviser is a party or by
which such Sub-Adviser may be bound or to which any of the property or
assets of such Sub-Adviser is subject.
(8) Agreements' Compliance with Laws. This Agreement, the
Sub-Advisory Agreement, the Sub-Advisory Agreement and the Fee Agreements
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.
(9) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
each Sub-Adviser, threatened, against or affecting each Sub-Adviser which
is required to be disclosed in the Preliminary Prospectus and Prospectus
(other than as disclosed therein), or that could reasonably be expected to
result in an Sub-Adviser Material Adverse Effect, or that could reasonably
be expected to materially and adversely affect the properties or assets
thereof or the consummation of the transactions contemplated in this
Agreement or the performance by a Sub-Adviser of its obligations under
this Agreement, the Sub-Advisory Agreement, the Sub-Sub-Advisory Agreement
16
or the Fee Agreements to which it is a party; the aggregate of all pending
legal or governmental proceedings to which each Sub-Adviser is a party or
of which any of its property or assets is the subject which are not
described in the Preliminary Prospectus or the Prospectus, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in an Sub-Adviser Material Adverse
Effect.
(10) Absence of Further Requirements. (A) No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, and (B) no authorization, approval, vote or other
consent of any other person or entity, is necessary or required for the
performance by each Sub-Adviser of its obligations under this Agreement,
the Sub-Advisory Agreement, the Sub-Sub-Advisory Agreement or the Fee
Agreements to which it is a party, except such as have been already
obtained under the 1933 Act, the 1940 Act, the Rules and Regulations, the
rules and regulations of FINRA and the NYSE and such as may be required
under state securities laws.
(11) Possession of Permits. Each Sub-Adviser has such Permits as are
necessary to own its property and to conduct its business in the manner
described in the Preliminary Prospectus and the Prospectus; each
Sub-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 Sub-Adviser
under any such Permit.
(12) Sub-Adviser Compliance with Policies and Procedures. Each
Sub-Adviser has adopted and implemented written policies and procedures
under Rule 206(4)-7 of the Advisers Act reasonably designed to prevent
violation of the Advisers Act and the Advisers Act Rules by such
Sub-Adviser and its supervised persons.
(13) Absence of Manipulation. Each Sub-Adviser has not taken and
will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result
in the stabilization or manipulation of the price of any security to
facilitate the sale or resale of the Securities, and each Sub-Adviser is
not aware of any such action taken or to be taken by any affiliates of
such Sub-Adviser, other than such actions as taken by the Underwriters
that are affiliates of such Sub-Adviser, so long as such actions are in
compliance with all applicable law.
(14) Promotional Materials. In the event that the Fund or a
Sub-Adviser makes available any promotional materials related to the
Securities or the transactions contemplated hereby intended for use only
by registered broker-dealers and registered representatives thereof by
means of an Internet web site or similar electronic means, each
Sub-Adviser will install and maintain, or will cause to be installed and
maintained, pre-qualification and password-protection or similar
procedures which are reasonably designed to effectively prohibit access to
such promotional materials by persons other than registered broker-dealers
and registered representatives thereof.
17
(15) Internal Controls. Each Sub-Adviser maintains a system of
internal controls sufficient to provide reasonable assurance that (i)
transactions effectuated by it under the Sub-Advisory Agreement or the
Sub-Sub-Advisory Agreement to which it is a party are executed in
accordance with its management's general or specific authorization; and
(ii) access to the Fund's assets is permitted only in accordance with
management's general or specific authorization.
(16) Money Laundering Laws. The operations of each Sub-Adviser and
its subsidiaries are and have been conducted at all times in compliance
with applicable Money Laundering Laws and no action, suit or proceeding by
or before any court or governmental agency, authority or body or any
arbitrator involving such Sub-Adviser or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the knowledge of
the Sub-Advisers, threatened.
(17) Foreign Corrupt Practices Act. Neither each Sub-Adviser nor, to
the knowledge of the Sub-Advisers, any trustee, officer, agent, employee
or affiliate of each Sub-Adviser is aware of or has taken any action,
directly or indirectly, that has resulted or would result in a violation
by such persons of the FCPA, including, without limitation, making use of
the mails or any means or instrumentality of interstate commerce corruptly
in furtherance of an offer, payment, promise to pay or authorization of
the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any "foreign official"
(as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in
contravention of the FCPA, and each Sub-Adviser and, to the knowledge of
the Sub-Advisers, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to
continue to ensure, continued compliance therewith.
(18) OFAC. Neither each Sub-Adviser nor, to the knowledge of the
Sub-Advisers, any trustee, director, officer, agent, employee or affiliate
of each Sub-Adviser is currently subject to any U.S. sanctions
administered by OFAC; and each Sub-Adviser will not cause the Fund,
directly or indirectly, to use any of the proceeds received by the Fund
from the sale of Securities contemplated by this Agreement, or lend,
contribute or otherwise make available any such proceeds to any
subsidiary, joint venture partner or other person or entity, for the
purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(d) Certificates. Any certificate signed by any officer of the Fund, the
Adviser or a Sub-Adviser and delivered to the Representatives or to counsel for
the Underwriters shall be deemed a representation and warranty by the Fund, the
Adviser or the Sub-Advisers, as the case may be, to each Underwriter as to the
matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Fund agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Fund, at a
18
purchase price of $19.10 per share, the amount of the Initial Securities set
forth opposite such Underwriter's name in Exhibit A hereto. The Fund is advised
that the Underwriters intend to (i) make a public offering of their respective
portions of the Securities as soon after the Applicable Time as is advisable and
(ii) initially to offer the Securities upon the terms set forth in the
Preliminary Prospectus and the Prospectus.
(b) Option Securities. 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 _____ Option Securities at the same purchase price per share as the
Underwriters shall pay for the Initial Securities less an amount per share equal
to any dividends or distributions declared by the Fund payable on the Initial
Securities, but not payable on the Option Securities. Said option may be
exercised only to cover over-allotments in the sale of the Initial Securities by
the Underwriters. Said option may be exercised in whole or in part at any time
and from time to time on or before the 45th day after the date of the Prospectus
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
Initial Securities, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional shares. Any such time and date
of delivery (an "Option Closing Date") shall be determined by the
Representatives, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Date, as
hereinafter defined.
(c) Payment. Payment of the purchase price for the Initial Securities, and
delivery of the related closing certificates therefor, shall be made at the
offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, Four Times Square, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon by the
Representatives and the Fund, at 9:00 A.M. (Eastern time) on [ ],
2015 (unless postponed in accordance with the provisions of Section 10), or such
other time not later than ten business days after such date as shall be agreed
upon by the Representatives and the Fund (such time and date of payment and
delivery being herein called "Closing Date").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Fund, on each Option Closing Date as specified in the notice from the
Representatives to the Fund.
Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Fund by Federal Funds wire transfer payable in same-day
funds to an account specified by the Fund. Delivery of the Initial Securities
and the Option Securities shall be made through the facilities of The Depository
Trust Company unless the Representatives shall otherwise instruct. ▇▇▇▇▇ Fargo,
individually and not as Representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Initial Securities
19
or the Option Securities, if any, to be purchased by any Underwriter whose funds
have not been received by the Closing Date or the relevant Option Closing Date,
as the case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Date or the relevant Option Closing Date, as the
case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than noon (Eastern time) on
the business day prior to the Closing Date or the relevant Option Closing Date,
as the case may be.
SECTION 3. Covenants of the Fund, the Adviser and the
Sub-Advisers. The Fund, the Adviser and the Sub-Advisers, jointly and severally,
covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Fund, subject to Section 3(a)(ii), will comply with the requirements
of Rule 430A and will notify the Representatives immediately, and confirm
the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of
the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for
any of such purposes, or of any examination pursuant to Section 8(e) of
the 1940 Act concerning the Registration Statement and (v) if the Fund
becomes the subject of a proceeding under Section 8A of the 1933 Act in
connection with the offering of the Securities. The Fund will use its best
efforts in connection with the offering of the Securities to prevent the
issuance of any stop order or the suspension of any such qualification
and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) Filing of Amendments. The Fund will give the Representatives
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)) or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act or otherwise, or will furnish
the Representatives with copies of any such documents within a reasonable
amount of time prior to such proposed filing or use, as the case may be,
and will not file or use any such document to which the Representatives or
counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Fund has furnished or
will deliver to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
20
filed and of each amendment thereto (including exhibits filed therewith)
and signed copies of all consents and certificates of experts. The copies
of the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Fund has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus
prepared prior to the date of this Agreement as such Underwriter
reasonably requested, and the Fund hereby consents to the use of such
copies for purposes permitted by the 1933 Act. The Fund will furnish to
each Underwriter, without charge, such number of copies of the documents
constituting the General Disclosure Package prepared on or after the date
of this Agreement and the Prospectus (and any amendments or supplements
thereto) as such Underwriter may reasonably request. The Preliminary
Prospectus and the Prospectus and any amendments or supplements thereto
furnished to the Underwriters is or will be, as the case may be, identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Fund will comply
with the 1933 Act, the 1940 Act and the Rules and Regulations so as to
permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time when
a prospectus is required by the 1933 Act to be delivered in connection
with sales of the Securities (including, without limitation, pursuant to
Rule 174), any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or
for the Fund, to amend the Registration Statement or amend or supplement
the Prospectus in order that the Prospectus will not include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if
it shall be necessary, in the opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act, the 1940 Act or the
Rules and Regulations, the Fund will promptly prepare and file with the
Commission, subject to Section 3(b) hereof, such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements,
and the Fund will furnish to the Underwriters such number of copies of
such amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Fund will use its best efforts, in
cooperation with the Underwriters, to qualify, if necessary, the
Securities for offering and sale under the applicable securities laws of
states of the United States, the District of Columbia, Guam, Puerto Rico
and the U.S. Virgin Islands as the Representatives may reasonably request
and to maintain such qualifications in effect for a period of not less
than one year from the date of this Agreement; provided, however, that the
Fund shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
21
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
(g) Rule 158. The Fund will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
security holders as soon as practicable an earnings statement for the
purposes of, and to provide to the Underwriters the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Fund will use the net proceeds received by
it from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(i) Reporting Requirements. The Fund, during the period when the
Prospectus is required to be delivered under the 1933 Act, the 1940 Act or
the Rules and Regulations, will file all documents required to be filed
with the Commission pursuant to the 1933 Act, the 1940 Act or the Rules
and Regulations within the time periods required by the 1934 Act, the 1940
Act or the Rules and Regulations.
(j) Subchapter M. The Fund will comply with the requirements of
Subchapter M of the Code to qualify as a regulated investment company
under the Code.
(k) Absence of Manipulation. The Fund, the Adviser and the
Sub-Advisers have not taken and will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in the stabilization or manipulation of the
price of any security to facilitate the sale or resale of the Securities,
and the Fund, the Adviser and the Sub-Advisers are not aware of any such
action taken or to be taken by any affiliates of the Fund, the Adviser and
the Sub-Advisers, other than such actions as taken by the Underwriters
that are affiliates of the Fund, the Adviser or a Sub-Adviser, so long as
such actions are in compliance with all applicable law.
(l) Restriction on Sale of Securities. The Fund will not, without
the prior written consent of the Representatives, offer, sell, contract to
sell, pledge, or otherwise dispose of, or enter into any transaction which
is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Fund or any
affiliate of the Fund or any person in privity with the Fund, directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act,
any other Securities or any securities convertible into, or exercisable,
or exchangeable for, Securities; or publicly announce an intention to
effect any such transaction for a period of 180 days following the
Applicable Time, provided, however, that the Fund may issue and sell
Securities pursuant to any dividend reinvestment plan of the Fund in
effect at the Applicable Time.
22
SECTION 4. Payment of Expenses.
(a) Expenses. The Fund will pay all expenses incident to the performance
of its obligations under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the word
processing, printing and delivery to the Underwriters of this Agreement and such
other documents as may be required in connection with the offering, purchase,
sale, issuance or delivery of the Securities, (iii) the preparation, issuance
and delivery of the certificates or evidence of book-entry notation for the
Securities to the Underwriters, including any stock or other transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters, (iv) the fees and disbursements of the counsel,
accountants and other advisors to the Fund, (v) the qualification of the
Securities under securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplements thereto, (vi) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus, the documents constituting the General Disclosure Package, the
Prospectus and the 1940 Act Notification, any Sales Material and any amendments
or supplements thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplements thereto,
(viii) the fees and expenses of the custodian and the transfer agent and
registrar for the Securities, (ix) the FINRA filing fees incurred by the Fund
under FINRA Rule 5110 in connection with the offering of the Securities, and the
FINRA filing fees incident to the filing of Sales Material with FINRA, (x) the
fees and disbursements of counsel to the Underwriters in connection with the
review by FINRA of the terms of the sale of the Securities (such fees and
disbursements of counsel to the Underwriters not to exceed $[ ]), (xi) the
transportation and other expenses incurred in connection with presentations to
prospective purchasers of the Securities, (xii) the fees and expenses incurred
in connection with the listing of the Securities on the NYSE and (xiii) all
other costs and expenses incident to the performance by the Fund of its
obligations hereunder. To the extent that the foregoing costs and expenses
incidental to the performance of the obligations of the Fund under this
Agreement exceed $0.04 per share, the Adviser will pay all such costs and
expenses. It is understood that, except as provided in this Section, Section 6,
Section 7 and Section 9(a)(i), the Underwriters will pay all of their fees and
expenses, including fees and disbursements of counsel, stock transfer taxes upon
resale of any Securities by the Underwriters, and any advertising expenses
incurred by the Underwriters in connection with any offer of Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Fund, the Adviser and the Sub-Advisers, jointly and
severally, agree that they shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters, incurred in connection with this Agreement or the
offering contemplated hereunder.
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase the Initial Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Fund, the Adviser and the
Sub-Advisers contained herein as of the Applicable Time, the Closing Date and
23
any Option Closing Date pursuant to Section 2 hereof, to the accuracy of the
statements of the Fund, the Adviser and the Sub-Advisers made in any
certificates pursuant to the provisions hereof, to the performance by the Fund,
the Adviser and the Sub-Advisers of their respective covenants and other
obligations hereunder and to the following additional conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at the Closing Date (or the applicable Option Closing Date,
as the case may be) no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or any
notice objecting to its use or order pursuant to Section 8(e) of the 1940
Act shall have been issued and proceedings therefor initiated or, to the
knowledge of the Fund, the Adviser or a Sub-Adviser, threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction
of counsel to the Underwriters. A prospectus containing the Rule 430A
Information shall have been filed with the Commission in accordance with
Rule 497 or a post-effective amendment providing such information shall
have been filed and declared effective in accordance with the requirements
of Rule 430A.
(b) Opinion of Counsel for Fund. At the Closing Date, the
Representatives shall have received the favorable opinions, each dated as
of the Closing Date, of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, counsel for the Fund
("Fund Counsel"), and in form and substance satisfactory to counsel for
the Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters, to the effect set forth in Exhibit B
hereto and to such further effect as counsel to the Underwriters may
reasonably request. Insofar as the opinion expressed above related to or
is dependent upon matters governed by Massachusetts law, ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ LLP will be permitted to rely on the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ &
Bockius LLP.
(c) Opinion of Counsel for Underwriters. At the Closing Date, the
Representatives shall have received the favorable opinion, dated as of the
Closing Date, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters, in form and substance satisfactory to the
Representatives.
(d) Certificate of the Fund. At the Closing Date or the applicable
Option Closing Date, as the case may be, there shall not have been, since
the date hereof or since the respective dates as of which information is
given in the Prospectus or the General Disclosure Package (exclusive of
any amendments or supplements thereto subsequent to the date of this
Agreement), any Fund Material Adverse Effect, and, at the Closing Date,
the Representatives shall have received a certificate of the Chairman, the
President, the Chief Executive Officer or an Executive Vice President or
Senior Vice President of the Fund and of the Chief Financial Officer or
Chief Accounting Officer of the Fund, dated as of the Closing Date, to the
effect that (i) there has been no such Fund Material Adverse Effect, (ii)
the representations and warranties of the Fund in this Agreement are true
and correct with the same force and effect as though expressly made at and
as of the Closing Date, (iii) the Fund has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at
24
or prior to the Closing Date under or pursuant to this Agreement, and (iv)
no stop order suspending the effectiveness of the Registration Statement
or order of suspension or revocation of registration pursuant to Section
8(e) of the 1940 Act has been issued, and no proceedings for that purpose
have been instituted or are pending or, to their knowledge, are
contemplated by the Commission.
(e) Opinion of Counsel for the Adviser. At the Closing Date, the
Representatives shall have received the favorable opinion, dated as of the
Closing Date, of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, counsel for the Adviser, in form
and substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other
Underwriters, to the effect set forth in Exhibit C hereto and to such
further effect as counsel to the Underwriters may reasonably request.
(f) Certificate of the Adviser. At the Closing Date or the
applicable Option Closing Date, as the case may be, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus or the General Disclosure Package
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement), any Adviser Material Adverse Effect, and, at the
Closing Date, the Representatives shall have received a certificate of the
Chairman, the President, the Chief Executive Officer or an Executive Vice
President or Senior Vice President of the Adviser and of the Chief
Financial Officer or Chief Accounting Officer of the Adviser, dated as of
the Closing Date, to the effect that (i) there has been no such Adviser
Material Adverse Effect, (ii) the representations and warranties of the
Adviser in this Agreement are true and correct with the same force and
effect as though expressly made at and as of the Closing Date, (iii) the
Adviser has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the Closing Date
under or pursuant to this Agreement, and (iv) no stop order suspending the
effectiveness of the Registration Statement or order of suspension or
revocation of registration pursuant to Section 8(e) of the 1940 Act has
been issued and no proceedings for that purpose have been instituted or
are pending or, to their knowledge, are contemplated by the Commission.
(g) Opinions of Counsel for the Sub-Advisers. At the Closing Date,
the Representatives shall have received the favorable opinions, dated as
of the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Sub-Advisers,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Sub-Sub-Adviser, and ▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, internal counsel for the Sub-Advisers, each in form and
substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letters for each of the other
Underwriters, to the effect set forth in Exhibits D through F hereto and
to such further effect as counsel to the Underwriters may reasonably
request.
(h) Certificate of the Investment Sub-Adviser. At the Closing Date
or the applicable Option Closing Date, as the case may be, there shall not
have been, since the date hereof or since the respective dates as of which
information is given in the Prospectus or the General Disclosure Package
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement), any Sub-Adviser Material Adverse Effect with respect
to the Investment Sub-Adviser, and, at the Closing Date, the
25
Representatives shall have received a certificate of the Chairman, the
President, the Chief Executive Officer or an Executive Vice President or
Senior Vice President (or other executive officer of comparable seniority
and authority reasonably acceptable to the Underwriters) of the Investment
Sub-Adviser and of the Chief Financial Officer or Chief Accounting Officer
(or other executive officer of comparable seniority and authority
reasonably acceptable to the Underwriters) of the Investment Sub-Adviser,
dated as of the Closing Date, to the effect that (i) there has been no
such Sub-Adviser Material Adverse Effect with respect to the Investment
Sub-Adviser, (ii) the representations and warranties of the Investment
Sub-Adviser in this Agreement are true and correct with the same force and
effect as though expressly made at and as of the Closing Date, (iii) the
Investment Sub-Adviser has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Closing Date under or pursuant to this Agreement, and (iv) no stop order
suspending the effectiveness of the Registration Statement or order of
suspension or revocation of registration pursuant to Section 8(e) of the
1940 Act has been issued and no proceedings for that purpose have been
instituted or are pending or, to their knowledge, are contemplated by the
Commission.
(i) Certificate of the Sub-Sub-Adviser. At the Closing Date or the
applicable Option Closing Date, as the case may be, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus or the General Disclosure Package
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement), any Sub-Adviser Material Adverse Effect with respect
to the Sub-Sub-Adviser, and, at the Closing Date, the Representatives
shall have received a certificate of the Chairman, the President, the
Chief Executive Officer or an Executive Vice President or Senior Vice
President (or other executive officer of comparable seniority and
authority reasonably acceptable to the Underwriters) of the
Sub-Sub-Adviser and of the Chief Financial Officer or Chief Accounting
Officer (or other executive officer of comparable seniority and authority
reasonably acceptable to the Underwriters) of the Sub-Sub-Adviser, dated
as of the Closing Date, to the effect that (i) there has been no such
Sub-Adviser Material Adverse Effect with respect to the Sub-Sub-Adviser,
(ii) the representations and warranties of the Sub-Sub-Adviser in this
Agreement are true and correct with the same force and effect as though
expressly made at and as of the Closing Date, (iii) the Sub-Sub-Adviser
has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Closing Date under or
pursuant to this Agreement, and (iv) no stop order suspending the
effectiveness of the Registration Statement or order of suspension or
revocation of registration pursuant to Section 8(e) of the 1940 Act has
been issued and, to their knowledge, no proceedings for that purpose have
been instituted or are pending or are contemplated by the Commission.
(j) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Representatives shall have received from Deloitte &
Touche LLP a letter, dated the date of this Agreement and in form and
substance satisfactory to the Representatives, together with signed or
reproduced copies of such letter for each of the other Underwriters,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
26
financial statements and certain financial information of the Fund
contained in the Registration Statement, the Preliminary Prospectus or the
Prospectus.
(k) Bring-down Comfort Letter. At the Closing Date, the
Representatives shall have received from Deloitte & Touche LLP a letter,
dated as of the Closing Date and in form and substance satisfactory to the
Representatives, to the effect that they reaffirm the statements made in
the letter furnished pursuant to subsection (j) of this Section, except
that the specified date referred to shall be a date not more than three
business days prior to the Closing Date.
(l) Fee Agreements. At the Applicable Time, the Adviser, the
Investment Sub-Adviser and the Sub-Sub-Adviser, respectively, shall
deliver to each of the other parties to the Fee Agreements copies of the
Fee Agreements, executed by the Adviser the Investment Sub-Adviser and the
Sub-Sub-Adviser, respectively and dated the date of this Agreement,
together with reproduced copies of such agreements executed by the
Adviser, the Investment Sub-Adviser and the Sub-Sub-Adviser for each of
the other parties thereto.
(m) No Objection. Prior to the date of this Agreement, FINRA shall
have confirmed that it has no objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(n) Conditions to Purchase of Option Securities. In the event that
the Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities on any Option Closing
Date that is after the Closing Date, the obligations of the several
Underwriters to purchase the applicable Option Securities shall be subject
to the conditions specified in the introductory paragraph of this Section
5 and to the further condition that, at the applicable Option Closing
Date, the Representatives shall have received:
(1) Officers' Certificate of the Fund. A certificate, dated
such Option Closing Date, to the effect set forth in, and signed by
two of the officers specified in, Section 5(d) hereof, except that
the references in such certificate to the Closing Date shall be
changed to refer to such Option Closing Date.
(2) Opinion of Counsel for Fund. The favorable opinion of
Fund Counsel in form and substance satisfactory to counsel for the
Underwriters, dated such Option Closing Date, relating to the Option
Securities to be purchased on such Option Closing Date and otherwise
to the same effect as the opinion required by Section 5(b) hereof.
(3) Opinion of Counsel for Underwriters. The favorable
opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters, dated such Option Closing Date, relating to the Option
Securities to be purchased on such Option Closing Date and otherwise
to the same effect as the opinion required by Section 5(c) hereof.
27
(4) Opinion of Counsel for the Adviser. The favorable opinion
of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, counsel for the Adviser, dated such
Option Closing Date, relating to the Option Securities to be
purchased on such Option Closing Date and otherwise to the same
effect as the opinion required by Section 5(e) hereof.
(5) Certificate of the Adviser. A certificate, dated such
Option Closing Date, to the effect set forth in, and signed by two
of the officers specified in, Section 5(f) hereof, except that the
references in such certificate to the Closing Date shall be changed
to refer to such Option Closing Date.
(6) Opinion of Counsel for the Sub-Advisers. The favorable
opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Sub-Advisers,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Sub-Sub-Adviser, and ▇▇▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, internal counsel for the Sub-Advisers, dated such
Option Closing Date, relating to the Option Securities to be
purchased on such Option Closing Date and otherwise to the same
effect as the opinion required by Section 5(g) hereof.
(7) Certificate of the Investment Sub-Adviser. A certificate,
dated such Option Closing Date, to the effect set forth in, and
signed by two of the officers specified in, Section 5(h) hereof,
except that the references in such certificate to the Closing Date
shall be changed to refer to such Option Closing Date.
(8) Certificate of the Sub-Sub-Adviser. A certificate, dated
such Option Closing Date, to the effect set forth in, and signed by
two of the officers specified in, Section 5(i) hereof, except that
the references in such certificate to the Closing Date shall be
changed to refer to such Option Closing Date.
(9) Bring-down Comfort Letter. A letter from Deloitte &
Touche LLP, in form and substance satisfactory to the
Representatives and dated such Option Closing Date, substantially in
the same form and substance as the letter furnished to the
Representatives pursuant to Section 5(j) hereof, except that the
"specified date" in the letter furnished pursuant to this paragraph
shall be a date not more than five days prior to such Option Closing
Date.
(o) Additional Documents. At the Closing Date and at each Option
Closing Date, counsel for the Underwriters shall have been furnished with
such documents and opinions as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, contained in this Agreement; and all proceedings taken by the
Fund, the Adviser and the Sub-Advisers in connection with the issuance and
sale of the Securities as herein contemplated and in connection with the
other transactions contemplated by this Agreement shall be satisfactory in
form and substance to the Representatives and counsel for the
Underwriters.
28
(p) Delivery of Documents. The documents required to be delivered by
this Section 5 shall be delivered at the office of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date and at each Option Closing Date.
(q) Termination of Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of Option Securities on an Option Closing Date which is after the
Closing Date, the obligations of the several Underwriters to purchase the
relevant Option Securities, may be terminated by the Representatives by
notice to the Fund.
SECTION 6. Indemnification.
(a) Indemnification by the Fund, the Adviser and the Sub-Advisers. The
Fund, the Adviser and the Sub-Advisers, jointly and severally, agree to
indemnify and hold harmless the Underwriters, affiliates of each Underwriter,
directors, officers, employees and agents of each Underwriter, and each person,
if any, who controls any Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading, or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus, any Sales Material, the Preliminary Prospectus or
the Prospectus (or any amendment or supplement thereto), or the omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that (subject to
Section 6(d) below) any such settlement is effected with the written
consent of the Fund, the Adviser and the Sub-Advisers; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above (subject to Section 6(c) of this
Agreement),
29
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Fund, the
Adviser or the Sub-Advisers by any Underwriter through the Representatives
expressly for use in the Registration Statement (or any amendment thereto), or
in any preliminary prospectus, any Sales Material, the Preliminary Prospectus or
the Prospectus (or any amendment or supplement thereto).
(b) Indemnification by the Underwriters. Each Underwriter severally agrees
to indemnify and hold harmless each of the Fund, the Adviser and the
Sub-Advisers, each of their directors, trustees, members, each of their officers
who signed the Registration Statement and each person, if any, who controls the
Fund, the Adviser or a Sub-Adviser within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section 6, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), or any preliminary prospectus, any Sales
Material, the Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Fund, the Adviser or a Sub-Adviser by such Underwriter through
the Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus, any Sales Material, the
Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto). The Fund, the Adviser and the Sub-Advisers acknowledge that (i) the
statements set forth in the last paragraph of the cover page and under the
heading "Underwriting" regarding the expected delivery of the Securities, (ii)
the list of Underwriters and their respective participation in the sale of the
Securities under the heading "Underwriting," (iii) the sentences related to
concessions and reallowances and (iv) the paragraphs related to stabilization,
syndicate covering transactions and penalty bids under the heading
"Underwriting" in any Preliminary Prospectus and the Prospectus 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) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced (through the forfeiture of substantive rights and
defenses) as a result thereof and in any event shall not relieve it from any
liability which it may have otherwise than on account of this indemnity
agreement. Counsel to the indemnified parties shall be selected as follows:
counsel to the Underwriters and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall be selected by the Representatives; counsel to the Fund, its
directors, trustees, members, each of its officers who signed the Registration
Statement and each person, if any, who controls the Fund within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by
the Fund; counsel to the Adviser and each person, if any, who controls such
Adviser within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall be selected by the Adviser; counsel to the Investment Sub-Adviser
and each person, if any, who controls the Investment Sub-Adviser within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be
selected by the Investment Sub-Adviser; and counsel to the Sub-Sub-Adviser and
30
each person, if any, who controls the Sub-Sub-Adviser within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by
the Sub-Sub-Adviser. An indemnifying party may participate at its own expense in
the defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party)
also be counsel to the indemnified party. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for the
Underwriters and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, the fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for the Fund, each of their directors, trustees,
members, each of its officers who signed the Registration Statement and each
person, if any, who controls the Fund within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
the Adviser and the fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for each Sub-Adviser, in each
case in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) Other Agreements with Respect to Indemnification and Contribution. The
provisions of this Section 6 and in Section 7 hereof shall not affect any
agreements among the Fund, the Adviser and the Sub-Advisers with respect to
indemnification of each other or contribution between themselves.
SECTION 7. Contribution. If the indemnification provided for
in Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
31
proportion as is appropriate to reflect the relative benefits received by the
Fund, the Adviser and the Sub-Advisers on the one hand and the Underwriters on
the other hand from the offering of the Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Fund, the Adviser and the Sub-Advisers on the one hand and of the Underwriters
on the other hand in connection with the statements or omissions which resulted
in such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Fund, the Adviser and the
Sub-Advisers on the one hand and the Underwriters on the other hand in
connection with the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Fund, the Adviser and the Sub-Advisers and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth on the cover of the Prospectus, bear to the aggregate initial
public offering price of the Securities as set forth on such cover.
The relative fault of the Fund, the Adviser and the Sub-Advisers on the
one hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Fund, by the Adviser, by the Sub-Advisers or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Fund, the Adviser, the Sub-Advisers and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
32
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and each trustee, officer, employee and agent of an Underwriter
shall have the same rights to contributions as such Underwriters, and each
person who controls the Fund, the Adviser or a Sub-Adviser within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, each officer of the
Fund, the Adviser and the Sub-Advisers and each trustee, director or member of
the Fund and the Adviser shall have the same rights to contribution as the Fund,
the Adviser and the Sub-Advisers. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the number of
Initial Securities set forth opposite their respective names in Exhibit A hereto
and not joint.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Fund or signed by or on
behalf of the Adviser or a Sub-Adviser submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by or on behalf of the
Fund, or by or on behalf of the Adviser or by or on behalf of a Sub-Adviser, and
shall survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Fund or the Adviser, with a copy to the
Sub-Advisers, at any time on or prior to the Closing Date (and, if any Option
Securities are to be purchased on an Option Closing Date which occurs after the
Closing Date, the Representatives may terminate the obligations of the several
Underwriters to purchase such Option Securities, by notice to the Fund, at any
time on or prior to such Option Closing Date) (i) if there has been, since the
time of execution of this Agreement or since the respective dates as of which
information is given in the Prospectus or the General Disclosure Package, any
Fund Material Adverse Effect, Adviser Material Adverse Effect or Sub-Adviser
Material Adverse Effect, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Fund has been suspended or materially limited by the
Commission or the NYSE, or if trading generally on the NYSE or in the Nasdaq
National Market has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, FINRA or any other governmental authority, or a material disruption
has occurred in commercial banking or securities settlement or clearance
services in the United States or (iv) if a banking moratorium has been declared
by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section
9, such termination shall be without liability of any party to any other party
33
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 hereof shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail at the Closing Date or an Option Closing
Date to purchase the Securities which it or they are obligated to purchase under
this Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters; or
(b) if the number of Defaulted Securities exceeds 10% of the number
of Securities to be purchased on such date, this Agreement or, with
respect to any Option Closing Date which occurs after the Closing Date,
the obligation of the Underwriters to purchase and of the Fund to sell the
Option Securities that were to have been purchased and sold on such Option
Closing Date, shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of an Option Closing Date which is after the
Closing Date, which does not result in a termination of the obligation of the
Underwriters to purchase and the Fund to sell the relevant Option Securities, as
the case may be, the Representatives shall have the right to postpone the
Closing Date or the relevant Option Closing Date, as the case may be, for a
period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
As used herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at ▇▇▇▇▇ Fargo Securities,
LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Equity Syndicate,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Equity Syndicate Desk, with a copy to the Legal Department, and UBS Securities
LLC, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate
Department; notices to the Fund and the Adviser shall be directed to them at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: W. ▇▇▇▇▇
▇▇▇▇▇▇▇; notices to the Investment Sub-Adviser or Sub-Sub-Adviser shall be
directed to it at ▇▇▇▇▇▇▇▇▇ Global Investors, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Legal Department, with a copy to
▇▇▇▇▇▇▇▇▇ Global Investors, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Attention: Legal Department.
SECTION 12. Parties. This Agreement shall inure to the benefit
of and be binding upon the Underwriters, the Fund, the Adviser and the
Sub-Advisers and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Fund, the Adviser and the
Sub-Advisers and their respective successors and the controlling persons and
directors, officers, members and trustees referred to in Sections 6 and 7 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the Underwriters, the Fund, the Adviser and
the Sub-Advisers and their respective successors, and said controlling persons
and officers and directors and trustees and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Effect of Headings. The Section and Exhibit
headings herein are for convenience only and shall not affect the construction
hereof.
SECTION 15. Definitions. As used in this Agreement, the
following terms have the respective meanings set forth below:
"Advisers Act" means the Investment Advisers Act of 1940, as amended.
"Advisers Act Rules and Regulations" means the rules and regulations of
the Commission under the Advisers Act.
"Adviser Material Adverse Effect" means a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Adviser, whether or not arising in the ordinary course
of business.
"Applicable Time" means the date and time that this Agreement is executed
and delivered by the parties hereto.
"Commission" means the Securities and Exchange Commission.
"▇▇▇▇▇" means the Commission's Electronic Data Gathering, Analysis and
Retrieval System.
"FINRA" means the Financial Industry Regulatory Authority.
35
"Fund Material Adverse Effect" means a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Fund, whether or not arising in the ordinary course of
business.
"GAAP" means generally accepted accounting principles.
"Initial Registration Statement" means the Fund's registration statement
(File Nos. 333-205681 and 811-23072) on Form N-2 (including the statement of
additional information incorporated by reference therein), as amended (if
applicable), at the time it became effective, including the Rule 430A
Information.
"NYSE" means the New York Stock Exchange.
"Organizational Documents" means (a) in the case of a corporation, its
charter and by-laws; (b) in the case of a limited or general partnership, its
partnership certificate, certificate of formation or similar organizational
document, its partnership agreement and its by-laws (if any); (c) in the case of
a limited liability company, its articles of organization, certificate of
formation or similar organizational documents, its operating agreement, limited
liability company agreement, membership agreement or other similar agreement and
its by-laws (if any); (d) in the case of a trust, its declaration of trust,
certificate of formation or similar organizational document, its trust agreement
or other similar agreement and its by-laws (if any); and (e) in the case of any
other entity, the organizational and governing documents of such entity.
"preliminary prospectus" means any prospectus (including the statement of
additional information incorporated by reference therein) used in connection
with the offering of the Securities that was so used before the Initial
Registration Statement became effective, or that was used after such
effectiveness and prior to the execution and delivery of this Agreement, or that
omitted the Rule 430A Information or that was captioned "Subject to Completion".
"Preliminary Prospectus" shall mean the preliminary prospectus (including
the statement of additional information incorporated by reference therein) dated
[ ], 2015 and any preliminary prospectus (including the statement of additional
information incorporated by reference therein) included in the Registration
Statement at the Applicable Time 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 Applicable Time.
"Registration Statement" means the Initial Registration Statement;
provided that, if a Rule 462(b) Registration Statement is filed with the
Commission, then the term "Registration Statement" shall also include such Rule
462(b) Registration Statement.
"Rule 174," "Rule 497," "Rule 430A," "Rule 433" and "Rule 462(b)" refer to
such rules under the 1933 Act.
"Rule 430A Information" means the information included in the Prospectus
that was omitted from the Initial Registration Statement at the time it became
36
effective but that is deemed to be a part of the Initial Registration Statement
at the time it became effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" means a registration statement filed
by the Fund pursuant to Rule 462(b) for the purpose of registering any of the
Securities under the 1933 Act, including the Rule 430A Information.
"Rules and Regulations" means, collectively, the 1933 Act Rules and
Regulations and the 1940 Act Rules and Regulations.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act" means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules
and regulations promulgated thereunder or implementing the provisions thereof.
"Sub-Adviser Material Adverse Effect" means a material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of a Sub-Adviser, whether or not arising in the ordinary
course of business.
"1933 Act" means the Securities Act of 1933, as amended.
"1933 Act Rules and Regulations" means the rules and regulations of the
Commission under the 1933 Act.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"1934 Act Rules and Regulations" means the rules and regulations of the
Commission under the 1934 Act.
"1940 Act" means the Investment Company Act of 1940, as amended.
"1940 Act Notification" means 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.
"1940 Act Rules and Regulations" means the rules and regulations of the
Commission under the 1940 Act.
All references in this Agreement to the Registration Statement, the
Initial Registration Statement, any Rule 462(b) Registration Statement, any
preliminary prospectus, the Preliminary Prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to ▇▇▇▇▇.
SECTION 16. Absence of Fiduciary Relationship. Each of the
Fund, the Adviser and the Sub-Advisers acknowledges and agrees that:
(a) Each of the Underwriters is acting solely as an underwriter in
connection with the public offering of the Securities and no fiduciary, advisory
or agency relationship between the Fund, the Adviser or a Sub-Adviser, on the
one hand, and any of the Underwriters, on the other hand, has been or will be
created in respect of any of the transactions contemplated by this Agreement,
irrespective of whether or not any of the Underwriters have advised or is
advising the Fund, the Adviser or a Sub-Adviser on other matters and none of the
Underwriters has any obligation to the Fund, the Adviser or a Sub-Adviser with
37
respect to the transactions contemplated by this Agreement except the
obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities and the price to be paid
by the Underwriters for the Securities set forth in this Agreement were
established by the Fund following discussions and arms-length negotiations with
the Representatives;
(c) it is capable of evaluating and understanding, and understands and
accepts, the terms, risks and conditions of the transactions contemplated by
this Agreement;
(d) in connection with each transaction contemplated by this Agreement and
the process leading to such transactions, each Underwriter is and has been
acting solely as principal and not as fiduciary, advisor or agent of the Fund,
the Adviser or a Sub-Adviser or any of their respective affiliates; provided
however, that in its capacity as an independent contractor, an Underwriter may
be providing advice to the Adviser and the Sub-Advisers as to the structure,
design and organization of the Fund pursuant to the Fee Agreements;
(e) none of the Underwriters has provided any legal, accounting,
regulatory or tax advice to the Fund, the Adviser or a Sub-Adviser with respect
to the transactions contemplated by this Agreement and it has consulted its own
legal, accounting, regulatory and tax advisers to the extent it has deemed
appropriate;
(f) it is aware that the Underwriters and their respective affiliates are
engaged in a broad range of transactions which may involve interests that differ
from those of the Fund and the Adviser, and that none of the Underwriters has
any obligation to disclose such interests and transactions to the Fund, the
Adviser or a Sub-Adviser by virtue of any fiduciary, advisory or agency
relationship; and
(g) it waives, to the fullest extent permitted by law, any claims it may
have against any of the Underwriters for breach of fiduciary duty or alleged
breach of fiduciary duty and agrees that none of the Underwriters shall have any
liability (whether direct or indirect, in contract, tort or otherwise) to it in
respect of such a fiduciary duty claim or to any person asserting a fiduciary
duty claim on its behalf or on behalf of the Fund, the Adviser or a Sub-Adviser.
SECTION 17. Disclaimer of Liability of Trustees and
Beneficiaries. A copy of the Declaration of Trust of the Fund is on file with
the Secretary of State of The Commonwealth of Massachusetts, and notice hereby
is given that this Agreement is executed on behalf of the Fund by an officer or
Trustee of the Fund in his or her capacity as an officer or Trustee of the Fund
and not individually and that the obligations under or arising out of this
Agreement are not binding upon any of the Trustees, officers or shareholders
individually but are binding only upon the assets and properties of the Fund.
[SIGNATURE PAGE FOLLOWS]
38
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Fund, the Adviser and the Sub-Advisers
a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Underwriters, the Fund, the Adviser
and the Sub-Advisers in accordance with its terms.
Very truly yours,
FIRST TRUST DYNAMIC EUROPE
EQUITY INCOME FUND
By
------------------------------------
Name:
Title:
FIRST TRUST ADVISORS L.P.
By
------------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇ GLOBAL INVESTORS
(NORTH AMERICA) INC.
By
------------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇ INVESTMENT
MANAGEMENT LIMITED
By
------------------------------------
Name:
Title:
39
CONFIRMED AND ACCEPTED, as of the
date first above written:
▇▇▇▇▇ FARGO SECURITIES, LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. LLC
UBS SECURITIES LLC
By: ▇▇▇▇▇ FARGO SECURITIES, LLC
By:
--------------------------------------
Authorized Signatory
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. LLC
By:
--------------------------------------
Authorized Signatory
By: UBS SECURITIES LLC
By:
--------------------------------------
Authorized Signatory
By:
--------------------------------------
Authorized Signatory
For themselves and as Representatives of the Underwriters named in Exhibit A
hereto.
40
EXHIBIT A
Number of
Name of Underwriter Initial Securities
------------------- ------------------
▇▇▇▇▇ Fargo Securities, LLC [ ]
TOTAL UNDERWRITERS [ ]
A-1