EXHIBIT h.1
DRAFT
3,120 SHARES
NUVEEN TAX-ADVANTAGED FLOATING RATE FUND
SERIES TH FUNDPREFERRED SHARES
UNDERWRITING AGREEMENT
[ ], 2005
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
Nuveen Investments, LLC
[Co-Managers]
As Representatives of the Several Underwriters
c/o ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
The undersigned, Nuveen Tax-Advantaged Floating Rate Fund, a Massachusetts
business trust, (the "Fund"), Nuveen Asset Management, a Delaware corporation
(the "Adviser"), and Spectrum Asset Management, Inc., a Connecticut corporation
(the "Sub-Adviser") address you as Underwriters and as the Representatives (the
"Representatives") of each of the other persons, firms and corporations, if any,
listed in Schedule I hereto (herein collectively called "Underwriters"). The
Fund proposes to issue and sell an aggregate of 3,120 Series TH FundPreferred
Shares, liquidation preference $25,000 per share (collectively the "Shares"), of
the Fund to the Underwriters.
The Fund, the Adviser and the Sub-Adviser wish to confirm as follows their
agreements with you and the other several Underwriters on whose behalf you are
acting in connection with the purchase of the Shares by the Underwriters.
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The Fund has entered into an investment management agreement with the
Adviser dated February 25, 2005 (the "Investment Management Agreement"), a
Master Custodian Agreement with State Street Bank and Trust Company ("State
Street") dated February 25, 2005 (the "Custodian Agreement"), a Transfer Agency
Agreement with State Street dated as of October 7, 2002, effective as of March
28, 2005 (the "Transfer Agency Agreement"), an Expense Reimbursement Agreement
with the Adviser dated February 24, 2005 (the "Expense Reimbursement Agreement,
a Structuring Fee Agreement with ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. dated March 31, 2005
(the "Structuring Fee Agreement"), an Auction Agent Agreement Request Letter,
dated [ ], 2005, requesting that the Fund be added to the Auction Agency
Agreement with The Bank of New York (the "Auction Agency Agreement"), a
Broker-Dealer Agreement Request Letter, dated [ ], 2005, requesting that the
Fund be added to the Broker-Dealer Agreement with The Bank of New York (the
"Broker-Dealer Agreement") and a Letter of Representations with the Depository
Trust Company dated [ ], 2005 (the "DTC Agreement"). In addition, the Fund has
adopted a dividend reinvestment plan (the "Dividend Reinvestment Plan"),
pursuant to which holders of common shares of beneficial interest, par value
$0.01 per share, of the Fund (the "Common Shares") shall have their dividends
automatically reinvested in additional Common Shares of the Fund unless they
elect to receive such dividends in cash. Collectively, the Investment Management
Agreement, the Custodian Agreement, the Transfer Agency Agreement, the Expense
Reimbursement Agreement, the Structuring Fee Agreement, the Auction Agency
Agreement, the Broker-Dealer Agreement, the DTC Agreement and the Dividend
Reinvestment Plan are herein referred to as the "Fund Agreements." The Adviser
has entered into a Sub-Advisory Agreement with Spectrum Asset Management, Inc.
(the "Sub-Adviser"), dated March 24, 2005 (the "Sub-Advisory Agreement"). The
Adviser, the Sub-Adviser and Sandler ▇'▇▇▇▇▇ Partners, L.P. have entered into a
Letter Agreement, dated January 25, 2005. This Underwriting Agreement is herein
referred to as the "Agreement."
1. Registration Statement and Prospectus. The Fund has prepared and
filed with the Securities and Exchange
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Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended (the "1933 Act"), the Investment Company Act
of 1940, as amended (the "1940 Act"), and the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Rules and Regulations") and the
1940 Act (the "1940 Act Rules and Regulations" and together with the 1933 Act
Rules and Regulations, the "Rules and Regulations") a registration statement on
Form N-2 (File No. 333-124087 under the 1933 Act) (the "registration
statement"), including a prospectus and statement of additional information
relating to the Shares, and a notification of registration of the Fund as an
investment company under the 1940 Act on Form N-8A (File No. 811-21705 under the
1940 Act, the "1940 Act Notification"), and may pursuant to the Rules and
Regulations prepare and file an additional registration statement relating to a
portion of the Shares pursuant to Rule 462(b) of the 1933 Act Rules and
Regulations (a "Rule 462 registration statement"). The term "Registration
Statement" as used in this Agreement means the registration statement (including
all financial schedules and exhibits), as amended at the time it becomes
effective under the 1933 Act or, if the registration statement became effective
under the 1933 Act prior to the execution of this Agreement, as amended or
supplemented thereto immediately prior to the execution of this Agreement and
including any information deemed to be included by Rule 430A under the 1933 Act
Rules and Regulations. If it is contemplated, at the time this Agreement is
executed, that a post-effective amendment to the registration statement will be
filed under the 1933 Act and must be declared effective before the offering of
Shares may commence, the term "Registration Statement" as used in this Agreement
means the Registration Statement as amended by said post-effective amendment. If
the Fund has filed a Rule 462 registration statement, or if such a filing is
contemplated at the time this Agreement is executed, then the reference herein
to the term "Registration Statement" shall include such Rule 462 registration
statement. The term "Prospectus" as used in this Agreement means the prospectus
and statement of additional information in the forms included in the
Registration Statement or, if the prospectus and statement of additional
information included in the Registration Statement
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omit information in reliance on Rule 430A under the 1933 Act Rules and
Regulations and such information is included in a prospectus and statement of
additional information filed with the Commission pursuant to Rule 497(h) under
the 1933 Act Rules and Regulations, the term "Prospectus" as used in this
Agreement means the prospectus and statement of additional information in the
forms included in the Registration Statement as supplemented by the addition of
the information contained in the prospectus (including the statement of
additional information) filed with the Commission pursuant to Rule 497(h). The
term "Prepricing Prospectus" as used in this Agreement means the prospectus and
statement of additional information subject to completion in the form included
in the registration statement at the time of the initial filing of the
registration statement with the Commission and as such prospectus and statement
of additional information shall have been amended from time to time prior to the
date of the Prospectus, together with any other prospectus (including any other
statement of additional information) relating to the Fund other than the
Prospectus. The terms "Registration Statement," "Prospectus" and "Prepricing
Prospectus" shall also include any financial statements and other information
included or incorporated by reference therein.
The Fund has furnished the Representatives with copies of such
Registration Statement, each amendment to such Registration Statement filed with
the Commission and each Prepricing Prospectus.
2. Agreements to Sell and Purchase. The Fund hereby agrees, subject to all
the terms and conditions set forth herein, to issue and to sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Fund, the Adviser and the Sub-Adviser herein contained and
subject to all of the other terms and conditions set forth herein, each
Underwriter agrees, severally and not jointly, to purchase from the Fund at a
purchase price of $[ ] per Share (the "Price per Share"), the number of Shares
set forth opposite the name of such Underwriter in Schedule I hereto.
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3. Terms of Public Offering. The Fund, the Adviser and the Sub-Adviser
have been advised by you that the Underwriters propose to make a public offering
of their respective portions of the Shares as soon after the Registration
Statement and this Agreement have become effective as in your judgment is
advisable and initially to offer the Shares upon the terms set forth in the
Prospectus.
4. Delivery of Shares and Payments Therefor.
(a) Payment of the purchase price for the Shares shall be made by
the Underwriters to the Fund by Federal Funds wire transfer, against
delivery of the Shares to you through the facilities of the Depository
Trust Company for the respective accounts of the Underwriters. Such
payment and delivery shall be made at 8:00 a.m. central time on [ ], 2005
(the "Closing Date"). The place of closing for the Shares and the Closing
Date may be varied by agreement between the Representatives and the Fund.
(b) The Shares shall be registered in such names and in such
denominations as the Underwriters shall request prior to 1:00 P.M., New
York City time.
5. Agreements of the Fund, the Adviser and the Sub-Adviser. The Fund, the
Adviser, and the Sub-Adviser jointly and severally, agree with the several
Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective under the 1933 Act before the offering of
the Shares may commence, the Fund will use its reasonable best efforts to
cause the Registration Statement or such post-effective amendment to
become effective under the 1933 Act as soon as possible. If the
Registration Statement has become effective and the Prospectus contained
therein omits certain information at the time of effectiveness pursuant to
Rule 430A of
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the 1933 Act Rules and Regulations, the Fund will file a prospectus
including such information pursuant to Rule 497(h) of the 1933 Act Rules
and Regulations, as promptly as practicable, but no later than the second
business day following the earlier of the date of the determination of the
offering price of the Shares or the date the Prospectus is first used
after the effective date of the Registration Statement. If the
Registration Statement has become effective and the Prospectus contained
therein does not so omit such information, the Fund will file a Prospectus
or certification pursuant to Rule 497(c) or (j), as the case may be, of
the 1933 Act Rules and Regulations as promptly as practicable, but no
later than the fifth business day following the date of the later of the
effective date of the Registration Statement or the commencement of the
public offering of the Shares after the effective date of the Registration
Statement. The Fund will advise you promptly and, if requested by you,
will confirm such advice in writing (i) when the Registration Statement or
such post-effective amendment has become effective, (ii) when the
Prospectus has been timely filed pursuant to Rule 497(c) or Rule 497(h) of
the 1933 Act Rules and Regulations or (iii) when the certification
permitted pursuant to Rule 497(j) of the 1933 Act Rules and Regulations
has been timely filed, whichever is applicable.
(b) The Fund, (and in the case of (iii)(B) below, with respect to
communications received by the Adviser or the Sub-Adviser and in the case
of (iv) below with respect to events so specified regarding the Adviser or
the Sub-Adviser) the Adviser or the Sub-Adviser, will advise you promptly
and, if requested by you, will confirm such advice in writing: (i) of any
request made by the Commission for an amendment of or a supplement to the
Registration Statement, the Prospectus or any Prepricing Prospectus (or
any amendment or supplement to any of the foregoing) or for additional
information, (ii) of the issuance by the Commission, the National
Association of Securities Dealers, Inc. (the "NASD"), any state securities
commission, any national securities exchange, any arbitrator, any court or
any other govern-
6
mental, regulatory, self-regulatory or administrative agency or any
official of any order suspending the effectiveness of the Registration
Statement, prohibiting or suspending the use of the Prospectus or any
Prepricing Prospectus, of any notice pursuant to Section 8(e) of the 1940
Act, of the suspension of qualification of the Shares for offering or sale
in any jurisdiction, or the initiation or contemplated initiation of any
proceeding for any such purposes, (iii) of receipt by (A) the Fund, any
affiliate of the Fund or any representatives or attorney of the Fund of
any other material communication from the Commission, or (B) the Fund, the
Adviser, the Sub-Adviser, any affiliate of the Fund, the Adviser or the
Sub-Adviser or any representatives or attorney of the Fund, the Adviser or
the Sub-Adviser of any other material communication from the Commission,
the NASD, any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official relating, in the
case of either clause (A) or (B), to the Fund (if such communication
relating to the Fund is received by such person within three years after
the date of this Agreement), the Registration Statement, the 1940 Act
Notification, the Prospectus, or any Prepricing Prospectus,(or any
amendment or supplement to any of the foregoing) or this Agreement or any
of the Fund Agreements and (iv) within the period of time referred to in
paragraph (f) below, of any material, adverse change in the condition
(financial or other), business, prospects, properties, net assets or
results of operations of the Fund or any event which should reasonably be
expected to have a material adverse effect on the ability of the Adviser
or the Sub-Adviser to perform its obligations under this Agreement, the
Investment Management Agreement or the Sub-Advisory Agreement, as the case
may be, (other than as a result of changes in market conditions generally)
or of the happening of any event which makes any statement of a material
fact made in the Registration Statement, the Prospectus, or any Prepricing
Prospectus (or any amendment or supplement to any of the foregoing) untrue
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or which requires the making of any additions to or changes in the
Registration Statement, the Prospectus, or any Prepricing Prospectus (or
any amendment or supplement to any of the foregoing) in order to state a
material fact required by the 1933 Act, the 1940 Act or the Rules and
Regulations to be stated therein or necessary in order to make the
statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading or of the
necessity to amend or supplement the Registration Statement, the
Prospectus, or any Prepricing Prospectus (or any amendment or supplement
to any of the foregoing) to comply with the 1933 Act, the 1940 Act, the
Rules and Regulations or any other law or order of any court or regulatory
body. If at any time the Commission shall issue any order suspending the
effectiveness of the Registration Statement, prohibiting or suspending the
use of the Prospectus (or any amendment or supplement to any of the
foregoing) or suspending the qualification of the Shares for offering or
sale in any jurisdiction, the Fund, the Adviser and the Sub-Adviser will
use their reasonable best efforts to obtain the withdrawal of such order
at the earliest possible time. If at any time the NASD, any national
securities exchange, any state securities commission, any arbitrator, any
court or any other governmental, regulatory, self-regulatory or
administrative agency or any official shall issue any order suspending the
effectiveness of the Registration Statement, prohibiting or suspending the
use of the Prospectus (or any amendment or supplement to any of the
foregoing) or suspending the qualification of the Shares for offering or
sale in any jurisdiction, the Fund, the Adviser and the Sub-Adviser will
use their respective reasonable best efforts to obtain the withdrawal of
such order at the earliest possible time.
(c) The Fund will furnish to you, without charge, three signed
copies of the registration statement and the 1940 Act Notification as
originally filed with the Commission and of each amendment thereto,
including financial statements and all exhibits thereto (except
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any post-effective amendment required by Rule 8b-16 of the 1940 Act Rules
and Regulations which is filed with the Commission after the later of (x)
one year from the date of this Agreement and (y) the date on which the
distribution of Shares is completed) and will also furnish to you, without
charge, such number of conformed copies of the registration statement as
originally filed and of each amendment thereto (except any post-effective
amendment required by Rule 8b-16 of the 1940 Act Rules and Regulations
which is filed with the Commission after the later of (x) one year from
the date of this Agreement and (y) the date on which the distribution of
Shares is completed), with or without exhibits, as you may reasonably
request.
(d) The Fund will not file any amendment to the registration
statement or the Registration Statement or make any amendment or
supplement to the Prospectus, or any Prepricing Prospectus (or any
amendment or supplement to any of the foregoing) of which you shall not
previously have been advised or to which you shall reasonably object
within a reasonable time after being so advised.
(e) Prior to the execution and delivery of this Agreement, the Fund
has delivered to you, without charge, in such quantities as you have
reasonably requested, copies of each form of any Prepricing Prospectus.
The Fund consents to the use, in accordance with the provisions of the
1933 Act and with the securities or Blue Sky laws of the jurisdictions in
which the Shares are offered by the several Underwriters and by dealers,
prior to the date of the Prospectus, of each Prepricing Prospectus so
furnished by the Fund.
(f) As soon after the execution and delivery of this Agreement as
possible, the Fund will expeditiously deliver to each Underwriter and each
dealer, without charge, as many copies of the Prospectus (and of any
amendment or supplement thereto) as you may reasonably request. The Fund
consents to the use of the Prospectus (and of any amendments or
supplements thereto) in accor-
9
dance with the provisions of the 1933 Act and with the securities or Blue
Sky laws of the jurisdictions in which the Shares are offered by the
several Underwriters and by all dealers to whom Shares may be sold, both
in connection with the offering or sale of the Shares and for such period
of time thereafter as the Prospectus is required by law to be delivered in
connection with sales of Shares by any Underwriter or dealer. If during
such period of time any event shall occur that in the judgment of the Fund
or in the opinion of counsel for the Underwriters is required to be set
forth in the Registration Statement or the Prospectus (as then amended or
supplemented) or should be set forth therein in order to make the
statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading or if it is
necessary to supplement or amend the Registration Statement or the
Prospectus to comply with the 1933 Act, the 1940 Act, the Rules and
Regulations or any other law, rule or regulation, the Fund will forthwith
notify you of such event, prepare and, subject to the provisions of
paragraph (d) above, promptly file with the Commission an appropriate
amendment or supplement thereto and will expeditiously furnish to the
Underwriters and dealers, without charge, such number of copies thereof as
they may reasonably request. In the event that the Registration Statement
or the Prospectus is to be amended or supplemented, the Fund, if requested
by you and to the extent consistent with applicable law, will promptly
issue a press release announcing or disclosing the matters to be covered
by the proposed amendment or supplement.
(g) The Fund will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers
under the securities or Blue Sky laws of such jurisdictions as you may
designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
qualification; provided that in no event
10
shall the Fund be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which subjects it
to service of process in suits, other than those arising out of the
offering or sale of the Shares, in any jurisdiction where it is not now
subject.
(h) Each of the Adviser and the Sub-Adviser will make generally
available to the Underwriters its staff, for assistance with roadshow
presentations as the Underwriters may reasonably request.
(i) As soon as practicable, but in no event later than the last day
of the 18th full calendar month following the calendar quarter in which
the effective date of the Registration Statement falls, the Fund will make
generally available to its security holders an earnings statement, which
need not be audited, which earnings statement shall satisfy the provisions
of Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and
Regulations.
(j) The Fund will comply with the undertaking set forth in paragraph
6 of Item 33 of Part C of the Registration Statement.
(k) During the period of three years hereafter, the Fund will
furnish or will have furnished to you (i) as soon as available, a copy of
each report of the Fund mailed to shareholders or filed with the
Commission or furnished to the New York Stock Exchange (the "NYSE") and
(ii) from time to time such other information concerning the Fund as you
may reasonably request.
(l) If this Agreement shall terminate or be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to
the second paragraph of Section 11 hereof or by notice given by you
terminating this Agreement pursuant to Section 12 hereof) or if this
Agreement shall be terminated by the Underwriters because of (i) any
failure or refusal on the part of the Fund, the Adviser or the Sub-Adviser
to comply with any
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term or fulfill any of the conditions of this Agreement required to be
complied with or fulfilled by them or (ii) the non-occurrence of any other
condition (in either case, other than by reason of default by the
Underwriters in the performance of their obligations under this
Agreement), the Fund, the Adviser and the Sub-Adviser, jointly and
severally, agree to reimburse the Representatives for all out-of-pocket
expenses not to exceed the amounts set forth in Section 13 of this
Agreement (including reasonable fees and expenses of counsel for the
Underwriters) incurred by you in connection herewith.
(m) The Fund will direct the investment of the net proceeds of the
offering of the Shares (i) in accordance with the description set forth in
the Prospectus; (ii) in such a manner as to comply with the investment
objectives, policies and restrictions of the Fund as described in the
Prospectus; and (iii) in a manner consistent with the Statement of
Preferences (the "Statement") to maintain its rating of "Aaa" by ▇▇▇▇▇'▇
Investor Services, Inc. and "AAA" by Fitch Ratings.
(n) The Fund will file the requisite copies of the Prospectus with
the Commission in a timely fashion pursuant to Rule 497(c) or Rule 497(h)
of the 1933 Act Rules and Regulations, whichever is applicable or, if
applicable, will file in a timely fashion the certification permitted by
Rule 497(j) of the 1933 Act Rules and Regulations and will advise you of
the time and manner of such filing.
(o) Except as provided in this Agreement, none of the Fund, the
Adviser, the Sub-Adviser or their respective officers, directors or
trustees will sell, contract to sell or otherwise dispose of, any
preferred shares or any securities convertible into or exercisable or
exchangeable for preferred shares or grant any options or warrants to
purchase preferred shares, for a period of 180 days after the date of the
Prospectus, without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
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(p) The Fund will direct the investment of the proceeds of the
offering of the Shares so as to comply 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.
(q) The Fund will promptly file the Statement with the Secretary of
State of the Commonwealth of Massachusetts, which Statement will be
substantially in the form of the Statement included as Appendix A to the
Statement of Additional Information.
6. Representations and Warranties of the Fund, the Adviser and the
Sub-Adviser. The Fund, the Adviser, and the Sub-Adviser jointly and severally,
represent and warrant to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement
thereto or filed pursuant to Rule 497 of the 1933 Act Rules and
Regulations, complied when so filed in all material respects with the
provisions of the 1933 Act, the 1940 Act and the Rules and Regulations and
the Commission has not issued any order preventing or suspending the use
of the Prepricing Prospectus.
(b) The registration statement, in the form in which it became or
becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective, the Prospectus
and any amendment or supplement thereto when filed with the Commission
under Rule 497 of the 1933 Act Rules and Regulations and the 1940 Act
Notification when originally filed with the Commission and any amendment
or supplement thereto when filed with the Commission complied or will
comply in all material respects with the provisions of the 1933 Act, the
1940 Act and the Rules and Regulations and each of the Registration
Statement and the Prospectus (or any supplement or
13
amendment to either of them) did not or will not at any such times contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in the light of the circumstances under
which they were made) not misleading; except that this representation and
warranty does not apply to statements in or omissions from the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them) made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Fund in writing
by or on behalf of any Underwriter through you expressly for use therein.
(c) All the outstanding shares of capital stock of the Fund have
been duly authorized and validly issued, are fully paid and (except as
described in the Prospectus under "Certain Provisions in the Declaration
of Trust")nonassessable and are free of any preemptive or similar rights,
the Shares have been duly authorized and, when issued and delivered to the
Underwriters against payment therefor in accordance with the terms hereof,
will be validly issued, fully paid and (except as described in the
Prospectus under "Certain Provisions in the Declaration of Trust")
nonassessable and free of any preemptive or similar rights and the capital
stock of the Fund conforms to the description thereof in the Registration
Statement or the Prospectus (or any amendment or supplement to either of
them). Except for the Shares and the Common Shares, no other shares of
capital stock are issued or outstanding and the capitalization of the Fund
conforms in all respects to the description thereof in the Registration
Statement and the Prospectus (or any amendment or supplement to either of
them).
(d) The Fund has been duly formed and is validly existing in good
standing as a business trust under the laws of the Commonwealth of
Massachusetts, with full business trust power and authority to own, lease
and operate its properties and to conduct its business as
14
described in the Registration Statement and the Prospectus (and any
amendment or supplement to either of them) and is duly registered and
qualified to conduct business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure so
to register or to qualify, either alone or in the aggregate, does not have
or would not reasonably be expected to have a material adverse effect on
the condition (financial or otherwise), business, properties, business
prospects, net assets or results of operations, whether or not occurring
in the ordinary course of business (a "Material Adverse Effect") of the
Fund. The Fund has no subsidiaries.
(e) There are no legal or governmental proceedings pending or, to
the knowledge of the Fund, threatened, against the Fund, or to which the
Fund or any of its properties is subject, that are required to be
described in the Registration Statement or the Prospectus (and any
amendment or supplement to either of them) but are not described as
required by applicable law and there are no agreements, contracts,
indentures, leases or other instruments that are required to be described
in the Registration Statement or the Prospectus (or any amendment or
supplement to either of them) or to be filed as an exhibit to the
Registration Statement that are not described or filed as required by the
1933 Act, the 1940 Act or the Rules and Regulations.
(f) The Fund is not in violation of its Declaration of Trust
("Declaration"), by-laws, or other organizational documents or any law,
ordinance, administrative or governmental rule or regulation applicable to
the Fund or of any decree of the Commission, the NASD, any state
securities commission, any national securities exchange, any arbitrator,
any court or any other governmental, regulatory, self-regulatory or
administrative agency or any other agency or any body or official having
jurisdiction over the Fund or in breach or default in the performance of
any
15
obligation, agreement or condition contained in any bond, debenture, note
or any other evidence of indebtedness or in any agreement, indenture,
lease or other instrument to which the Fund is a party or by which it or
any of its properties may be bound, except for such violation or such
breach or default that, either alone or in the aggregate, does not have or
would not reasonably be expected to have a Material Adverse Effect on the
Fund.
(g) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement or any of the Fund Agreements by
the Fund, nor the consummation by the Fund of the transactions
contemplated hereby or thereby (i) requires any consent, approval,
authorization or order of or registration or filing which has not yet been
obtained or made with the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court,
regulatory body, administrative agency or other governmental body, agency
or official having jurisdiction over the Fund (except (i) compliance with
the securities or Blue Sky laws of various jurisdictions which have been
or will be effected in accordance with this Agreement; (ii) for compliance
with the filing requirements, if any, of the NASD Division of Corporate
Finance; and (iii) for the filing of the of the Statement relating to the
Shares with the Commonwealth of Massachusetts) or conflicts or will
conflict with or constitutes or will constitute a breach of the
Declaration, by-laws, or other organizational documents of the Fund or
(ii) (A) 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 (B) 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
16
which it is a party or by which it may be bound or to which any of the
property or assets of the Fund is subject, except for such conflict,
breach, default, violation or lien, charge or encumbrance that, either
alone or in the aggregate, does not have or would not reasonably be
expected to have a Material Adverse Effect on the Fund. As of the date
hereof, the Fund is not subject to any order of any court or of any
arbitrator, governmental authority or administrative agency.
(h) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), except as otherwise stated therein, (i) there has been
no material, adverse change in the condition (financial or other),
business, properties, net assets or results of operations of the Fund or
business prospects (other than as a result of a change in the financial
markets generally) of the Fund, whether or not arising in the ordinary
course of business and(ii) there have been no transactions entered into by
the Fund other than those in the ordinary course of its business as
described in the Prospectus (and any amendment or supplement thereto),
except for such transactions that, either alone or in the aggregate, do
not have or would not reasonably be expected to have a Material Adverse
Effect on the Fund.
(i) The accountants, Ernst & Young LLP, who have audited the
Statement of Assets and Liabilities included in the Registration Statement
and the Prospectus (and any amendment or supplement to either of them),
are an independent registered public accounting firm as required by the
1933 Act, the 1940 Act and the Rules and Regulations.
(j) The financial statements, together with related schedules and
notes, included or incorporated by reference in the Registration Statement
or the Prospectus (or any amendment or supplement to either of them)
present fairly the financial position of the Fund on the basis stated in
the Registration Statement at the
17
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved except as disclosed therein; and
the other financial and statistical information and data included in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto) are accurately derived from such financial statements and the
books and records of the Fund.
(k) The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497 under
the 1933 Act Rules and Regulations, has taken all required action under
the 1933 Act, the 1940 Act and the Rules and Regulations to make the
public offering and consummate the sale of the Shares as contemplated by
this Agreement.
(l) The execution and delivery of and the performance by the Fund of
its obligations under this Agreement and the Fund Agreements have been
duly and validly authorized by the Fund and this Agreement and each of the
Fund Agreements have been duly executed and delivered by the Fund and each
constitutes the valid and legally binding agreement of the Fund,
enforceable against the Fund in accordance with its terms, except as
rights to indemnity and contribution hereunder may be limited by federal
or state securities laws and subject to the qualification that the
enforceability of the Fund's obligations hereunder and thereunder may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and by general
equitable principles.
(m) Except as disclosed in or contemplated by the Registration
Statement or the Prospectus (or any amendment or supplement to either of
them), subsequent to the respective dates as of which such information is
given in the Registration Statement and the Prospectus (and
18
any amendment or supplement to either of them), the Fund has not incurred
any liability or obligation, direct or contingent, except for such
liability or obligation that, either alone or in the aggregate, does not
have or would not reasonably be expected to have a Material Adverse Effect
on the Fund or entered into any transaction, not in the ordinary course of
business, and there has not been any change in the capital stock or any
material, adverse change or any development involving or which would
reasonably be expected to have a Material Adverse Effect on the Fund or a
material adverse effect on its capitalization, or the incurrence of any
debt by, the Fund.
(n) The Fund has not distributed and, prior to the later to occur of
(i) the Closing Date and (ii) completion of the distribution of the
Shares, will not distribute to the public any offering material in
connection with the offering and sale of the Shares other than the
Registration Statement, the Prepricing Prospectus included in
Pre-Effective Amendment No. 1 to the registration statement and the
Prospectus.
(o) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus (and any amendment or supplement thereto); the Fund has
fulfilled and performed all its material obligations with respect to such
permits and no event has occurred which allows or, after notice or lapse
of time, would allow, revocation or termination thereof or results in any
other material impairment of the rights of the Fund under any such permit,
subject in each case to such qualification as may be set forth in the
Prospectus (and any amendment or supplement thereto); and, except as
described in the Prospectus (and any amendment or supplement thereto),
none of such permits contains any restriction that is materially
burdensome to the Fund.
(p) The Fund maintains and will maintain a system
19
of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with the Board
of Trustees' general or specific authorization and with the investment
policies and restrictions of the Fund and the applicable requirements of
the 1940 Act, the 1940 Act Rules and Regulations and the Code; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles, to
calculate net asset value and fee accruals, to maintain accountability for
assets and to maintain compliance with the books and records requirements
under the 1940 Act and the 1940 Act Rules and Regulations; (iii) access to
assets is permitted only in accordance with the Board of Trustees' general
or specific authorization; and (iv) the recorded account for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(q) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or licensee of
any patents, patent licenses, trademarks, service marks or trade names
which it does not own, possess or license.
(r) The Fund is duly registered under the 1940 Act and the Rules and
Regulations as a closed-end, diversified management investment company and
the 1940 Act Notification has been duly filed with the Commission and, at
the time of filing thereof and at the time of filing any amendment or
supplement thereto, the 1940 Act Notification conformed in all material
respects with all applicable provisions of the 1940 Act and the Rules and
Regulations; the Fund has received no order of suspension or revocation of
such registration under the 1940 Act and the 1940 Act Rules and
Regulations and, to the knowledge of the Fund, no such order has been
issued or proceedings therefor initiated or threatened by the Commission.
The provisions of the Declaration, the by-laws and the Statement (in the
form filed as Appendix A to the Statement of Additional Information) and
the
20
investment policies and restrictions described in each of the Registration
Statement and the Prospectus, comply in all material respects with the
requirements of the 1940 Act and the 1940 Act Rules and Regulations.
(s) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1933 Act, the 1940
Act, the Rules and Regulations, the Investment Advisers Act of 1940, as
amended (the "Advisers Act"), and the rules and regulations of the
Commission promulgated under the Advisers Act (the "Advisers Act Rules and
Regulations").
(v) No holder of any security of the Fund has any right to require
registration of any Shares, Common Shares or any other security of the
Fund because of the filing of the registration statement or consummation
of the transactions contemplated by this Agreement.
(w) The Fund, the Adviser and the Sub-Adviser intend to direct the
investment of the proceeds of the offering of the Shares in such a manner
as to comply with the requirements of Subchapter M of the Code.
(x) The Fund has not received, and to the knowledge of the Fund, the
Commission has not issued any order preventing or suspending the use of
any Prepricing Prospectus or the Prospectus.
(y) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them), no trustee
of the Fund is an "interested person" (as defined in the ▇▇▇▇ ▇▇▇) of the
Fund or an "affiliated person" (as defined in the ▇▇▇▇ ▇▇▇) of any
Underwriter listed in Schedule I hereto.
(z) The Common Shares are listed on the NYSE.
7. Representations and Warranties of the Adviser. The Adviser represents
and warrants to each Underwriter as follows:
21
(a) The Adviser is a corporation duly organized and validly existing
in good standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in each of the Registration Statement
and the Prospectus (or any amendment or supplement to either of them) and
is duly registered and qualified to conduct business and is in good
standing in each jurisdiction or place where the nature of its properties
or conduct of its business requires such registration or qualification,
except where the failure so to register or to qualify would not reasonably
be expected to have a Material Adverse Effect on the Adviser or the Fund.
(b) The Adviser is duly registered with the Commission 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 for the Fund as contemplated by the Registration Statement or
the Prospectus (or any amendment or supplement to either of them). There
does not exist any proceeding which would reasonably be expected to have a
material adverse effect on the registration of the Adviser with the
Commission.
(c) There are no legal or governmental proceedings pending or, to
the knowledge of the Adviser, threatened against the Adviser that are
required to be described in the Registration Statement or the Prospectus
(or any amendment or supplement to either of them) but are not described
as required or that would reasonably be expected to result in any Material
Adverse Effect on the Adviser or that would be reasonably expected to have
a material adverse effect on the ability of the Adviser to perform its
obligations under this Agreement or the Investment Management Agreement.
(d) Neither the execution, delivery or performance by the Adviser of
this Agreement, the Investment Management Agreement, the Expense
Reimbursement
22
Agreement, the Sub-Advisory Agreement or the Subscription Agreement for
Common Shares of the Fund dated March 11, 2005 (the "Subscription
Agreement," this Agreement, the Investment Management Agreement, the
Expense Reimbursement Agreement, the Sub-Advisory Agreement, the Letter
Agreement and the Subscription Agreement being referred to herein as the
"Adviser Agreements"), nor the consummation by the Adviser of the
transactions contemplated hereby or thereby (i) requires the Adviser to
obtain any consent, approval, authorization or other order of, or
registration or filing which has not yet been made or obtained with, the
Commission, the NASD, any state securities commission, any national
securities exchange, any arbitrator, any court, regulatory body,
administrative agency or other governmental body, agency or official
having jurisdiction over the Adviser (except compliance with securities or
Blue Sky laws of various jurisdictions which have been or will be effected
in accordance with this Agreement and except for compliance with the
filing requirements of the NASD Division of Corporate Finance) or
conflicts or will conflict with or constitutes or will constitute a breach
of or a default under, the certificate of incorporation or bylaws, or
other organizational documents of the Adviser or (ii) conflicts or will
conflict with or constitutes or will constitute a material breach of or a
default under, any material agreement, indenture, lease or other
instrument to which the Adviser is a party or by which the Adviser or any
of its properties may be bound, or materially violates or will materially
violate any material statute, law, regulation 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 material lien, charge or
encumbrance upon any property or assets of the Adviser pursuant to the
terms of any agreement or instrument to which it is a party or by which it
may be bound or to which any of the property or assets of the Adviser is
subject, except in any case under clause (i) or (ii) as would not
reasonably be expected to have a material adverse effect on the ability of
the Adviser to perform its obligations under
23
any of the Adviser Agreements. The Adviser is not subject to any order of
any court or of any arbitrator, regulatory body, administrative agency or
other governmental body, agency or official.
(e) The Adviser has full power and authority to enter into each of
the Adviser Agreements, the execution and delivery of, and the performance
by the Adviser of its obligations under, each of the Adviser Agreements
have been duly and validly authorized by the Adviser and each of the
Adviser 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 hereunder 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, fraudulent conveyance, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles whether
enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources available to it
necessary for the performance of its services and obligations as
contemplated in the Registration Statement and the Prospectus (or any
amendment or supplement to either of them) or under each of the Adviser
Agreements.
(g) The description of the Adviser and its business, and the
statements attributable to the Adviser, in the Registration Statement or
the Prospectus (or any amendment or supplement to either of them) complied
and comply in all material respects with the provisions of the 1933 Act,
the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers
Act Rules and Regulations and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the
24
statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading.
(h) Since the date as of which information is given in the
Registration Statement or the Prospectus (or any amendment or supplement
to either of them), except as otherwise stated therein, (i) there has been
no material adverse change in the condition (financial or other),
business, properties, net assets or results of operations or business
prospects of the Adviser, whether or not arising from the ordinary course
of business and (ii) there have been no transactions entered into by the
Adviser which are material to the Adviser other than those in the ordinary
course of its business as described in the Prospectus.
(i) The Adviser has such permits as are necessary to own its
property and to conduct its business in the manner described in the
Prospectus (and any amendment or supplement thereto); the 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.
(j) None of the Adviser Agreements violate any applicable provisions
of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and
the Advisers Act Rules and Regulations.
8. Representations and Warranties of the Sub-Adviser. The Sub-Adviser
represents and warrants to each Underwriter as follows:
(a) The Sub-Adviser is a corporation duly organized and validly
existing in good standing under the laws of the State of Connecticut, with
full corporate power and authority to own, lease and operate its
properties and to conduct its business as described
25
in each of the Registration Statement and the Prospectus (or any amendment
or supplement to either of them) and is duly registered and qualified to
conduct business and is in good standing in each jurisdiction or place
where the nature of its properties or conduct of its business requires
such registration or qualification, except where the failure so to
register or to qualify would not reasonably be expected to have a Material
Adverse Effect on the Sub-Adviser or the Fund.
(b) The Sub-Adviser is duly registered with the Commission 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 for the Fund as contemplated by the Registration Statement or
the Prospectus (or any amendment or supplement to either of them). There
does not exist any proceeding which would reasonably be expected to have a
material adverse effect on the registration of the Sub-Adviser with the
Commission.
(c) There are no legal or governmental proceedings pending or, to
the knowledge of the Sub-Adviser, threatened against the Sub-Adviser that
are required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement to either of them) but are not
described as required or that would reasonably be expected to result in
any Material Adverse Effect on the Sub-Adviser or that would be reasonably
expected to have a material adverse effect on the ability of the
Sub-Adviser to perform its obligations under this Agreement or the
Sub-Advisory Agreement.
(d) Neither the execution, delivery or performance by the
Sub-Adviser of this Agreement or the Sub-Advisory Agreement (this
Agreement, the Letter Agreement and the Sub-Advisory Agreement being
referred to herein as the "Sub-Adviser Agreements"), nor the consummation
by the Sub-Adviser of the transactions contemplated hereby or thereby (i)
requires the Sub-Adviser to obtain any consent, approval, authorization or
other order of, or
26
registration or filing which has not yet been made or obtained with, the
Commission, the NASD, any state securities commission, any national
securities exchange, any arbitrator, any court, regulatory body,
administrative agency or other governmental body, agency or official
having jurisdiction over the Sub-Adviser (except compliance with
securities or Blue Sky laws of various jurisdictions which have been or
will be effected in accordance with this Agreement and except for
compliance with the filing requirements of the NASD Division of Corporate
Finance) or conflicts or will conflict with or constitutes or will
constitute a breach of or a default under, the certificate of
incorporation or bylaws, or other organizational documents of the
Sub-Adviser or (ii) conflicts or will conflict with or constitutes or will
constitute a material breach of or a default under, any material
agreement, indenture, lease or other instrument to which the Sub-Adviser
is a party or by which the Sub-Adviser or any of its properties may be
bound, or materially violates or will materially violate any material
statute, law, regulation or judgment, injunction, order or decree
applicable to the Sub-Adviser or any of its properties or will result in
the creation or imposition of any material lien, charge or encumbrance
upon any property or assets of the Sub-Adviser pursuant to the terms of
any agreement or instrument to which it is a party or by which it may be
bound or to which any of the property or assets of the Sub-Adviser is
subject, except in any case under clause (i) or (ii) as would not
reasonably be expected to have a material adverse effect on the ability of
the Sub-Adviser to perform its obligations under any of the Sub-Adviser
Agreements. The Sub-Adviser is not subject to any order of any court or of
any arbitrator, regulatory body, administrative agency or other
governmental body, agency or official.
(e) The Sub-Adviser has full power and authority to enter into each
of the Sub-Adviser Agreements, the execution and delivery of, and the
performance by the Sub-Adviser of its obligations under, each of the
Sub-Adviser Agreements have been duly and validly authorized
27
by the Sub-Adviser and each of the Sub-Adviser Agreements have been duly
executed and delivered by the Sub-Adviser and constitute the valid and
legally binding agreements of the Sub-Adviser, enforceable against the
Sub-Adviser in accordance with their terms, except as rights to indemnity
and contribution hereunder may be limited by federal or state securities
laws and subject to the qualification that the enforceability of the
Sub-Adviser's obligations hereunder and thereunder may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors' rights generally and by
general equitable principles whether enforcement is considered in a
proceeding in equity or at law.
(f) The Sub-Adviser has the financial resources available to it
necessary for the performance of its services and obligations as
contemplated in the Registration Statement and the Prospectus (or any
amendment or supplement to either of them) or under each of the
Sub-Adviser Agreements.
(g) The description of the Sub-Adviser and its business, and the
statements attributable to the Sub-Adviser, in the Registration Statement
or the Prospectus (or any amendment or supplement to either of them)
complied and comply in all material respects with the provisions of the
1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and
the Advisers Act Rules and Regulations and did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in the light of the circumstances under
which they were made) not misleading.
(h) Since the date as of which information is given in the
Registration Statement or the Prospectus (or any amendment or supplement
to either of them), except as otherwise stated therein, (i) there has been
no material adverse change in the condition (financial or other),
business, properties, net assets or results
28
of operations or business prospects of the Sub-Adviser, whether or not
arising from the ordinary course of business and (ii) there have been no
transactions entered into by the Sub-Adviser which are material to the
Sub-Adviser other than those in the ordinary course of its business as
described in the Prospectus.
(i) The Sub-Adviser has such permits as are necessary to own its
property and to conduct its business in the manner described in the
Prospectus (and any amendment or supplement thereto); the 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 the Sub-Adviser under any such
permit.
(j) None of the Sub-Adviser Agreements violate any applicable
provisions of the 1940 Act, the 1940 Act Rules and Regulations, the
Advisers Act and the Advisers Act Rules and Regulations.
9. Indemnification and Contribution.
(a) The Fund, the Adviser and the Sub-Adviser, jointly and
severally, agree to indemnify and hold harmless each of you and each other
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), from and against any
and all losses, claims, damages, liabilities and expenses, joint or
several (including reasonable costs of investigation), arising out of or
based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Prospectus, any
Prepricing Prospectus (or any amendment or supplement to any of the
foregoing) or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a
29
prospectus, in the light of the circumstances under which they were made)
not misleading, except insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has
been made therein or omitted therefrom in reliance upon and in conformity
with the information relating to such Underwriters furnished in writing to
the Fund by or on behalf of any Underwriter through you expressly for use
in connection therewith; provided, however, that the foregoing
indemnification contained in this paragraph (a) with respect to the
Registration Statement, the Prospectus or any Prepricing Prospectus (or
any amendment to any of the foregoing) shall not inure to the benefit of
any Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any such loss, claim, damage, liability or
expense arising from the sale of the Shares by such Underwriter to any
person if it is shown that a copy of the Prospectus (which term as used in
this proviso shall not include any statement of additional information),
as then amended or supplemented, was not delivered or sent to such person
within the time required by the 1933 Act and the 1933 Act Rules and
Regulations and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in the
Registration Statement, the Prospectus or any Prepricing Prospectus was
corrected in the Prospectus, as then amended or supplemented, provided
that the Fund has delivered the Prospectus, as then amended or
supplemented, to the several Underwriters in requisite quantity on a
timely basis to permit proper delivery or sending. The foregoing indemnity
agreement shall be in addition to any liability which the Fund, the
Adviser or the Sub-Adviser may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Fund, the Adviser or the Sub-Adviser,
such Underwriter or such controlling person shall promptly notify the
Fund, the Adviser or
30
the Sub-Adviser and the Fund, the Adviser or the Sub-Adviser shall assume
the defense thereof, including the employment of counsel and the payment
of all fees and expenses. Such Underwriter or any such controlling person
shall have the right to employ separate counsel in any such action, suit
or proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or
controlling person unless (i) the Fund, the Adviser or the Sub-Adviser
have agreed in writing to pay such fees and expenses, (ii) the Fund, the
Adviser or the Sub-Adviser have failed within a reasonable time to assume
the defense and employ counsel or (iii) the named parties to any such
action, suit or proceeding (including any impleaded parties) include both
such Underwriter or such controlling person and the Fund, the Adviser or
the Sub-Adviser and such Underwriter or such controlling person shall have
been advised by its counsel that representation of such indemnified party
and the Fund, the Adviser or the Sub-Adviser by the same counsel would be
inappropriate under applicable standards of professional conduct (whether
or not such representation by the same counsel has been proposed) due to
actual or potential differing interests between them (in which case the
Fund, the Adviser and the Sub-Adviser shall not have the right to assume
the defense of such action, suit or proceeding on behalf of such
Underwriter or such controlling person). It is understood, however, that
the Fund, the Adviser and the Sub-Adviser shall, in connection with any
one such action, suit or proceeding or separate but substantially similar
or related actions, suits or proceedings in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of only one separate firm of attorneys (in
addition to any local counsel if there is any action, suit or proceeding
in more than one jurisdiction) at any time for all such Underwriters and
controlling persons not having actual or potential differing interests
with you or among themselves, which firm shall be designated in writing by
the Representatives and that, subject to the requirements of
31
1940 Act Release No. 11330, all such fees and expenses shall be reimbursed
promptly as they are incurred. The Fund, the Adviser and the Sub-Adviser
shall not be liable for any settlement of any such action, suit or
proceeding effected without the written consent of the Fund, the Adviser
or the Sub-Adviser, but if settled with such written consent or if there
be a final judgment for the plaintiff in any such action, suit or
proceeding, the Fund, the Adviser and the Sub-Adviser agree to indemnify
and hold harmless any Underwriter, to the extent provided in the preceding
paragraph and any such controlling person from and against any loss,
liability, damage or expense by reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Fund, the Adviser and the Sub-Adviser, their
trustees or directors, any officers of the Fund who sign the Registration
Statement and any person who controls the Fund, the Adviser or the
Sub-Adviser within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act, to the same extent as the foregoing indemnity from the
Fund, the Adviser and the Sub-Adviser to each Underwriter, but only with
respect to information relating to such Underwriter furnished in writing
by or on behalf of such Underwriter through you expressly for use in the
Registration Statement, the Prospectus or any Prepricing Prospectus (or
any amendment or supplement thereto). If any action, suit or proceeding
shall be brought against the Fund, the Adviser or the Sub-Adviser, any of
their trustees or directors, any such officer or any such controlling
person, based on the Registration Statement, the Prospectus or any
Prepricing Prospectus (or any amendment or supplement thereto) and in
respect of which indemnity may be sought against any Underwriter pursuant
to this paragraph (c), such Underwriter shall have the rights and duties
given to each of the Fund, the Adviser and the Sub-Adviser by paragraph
(b) above (except that if the Fund, the Adviser or the Sub-Adviser shall
have assumed the defense thereof such Underwriter shall not be required
32
to do so, but may employ separate counsel therein and participate in the
defense thereof, but the fees and expenses of such counsel shall be at
such Underwriter's expense) and the Fund, the Adviser and the Sub-Adviser,
their trustees or directors, any such officer and any such controlling
person shall have the rights and duties given to the Underwriters by
paragraph (b) above. The foregoing indemnity agreement shall be in
addition to any liability which the Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred
to therein, then an indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities
or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Fund, the Adviser and the Sub-Adviser on
the one hand (treated jointly for this purpose as one person) and the
Underwriters on the other from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Fund, the Adviser and the Sub-Adviser on the one hand (treated jointly
for this purpose as one person) and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Fund, the
Adviser and the Sub-Adviser on the one hand (treated jointly for this
purpose as one person) and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Fund bear to the total
underwriting discounts and commissions received by the Underwriters, in
each case, as set forth in the table on the cover
33
page of the Prospectus. The relative fault of the Fund, the Adviser and
the Sub-Adviser on the one hand (treated jointly for this purpose as one
person) and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Fund, the Adviser
and the Sub-Adviser on the one hand (treated jointly for this purpose as
one person) or by the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Fund, the Adviser, the Sub-Adviser and the Underwriters
agree that it would not be just and equitable if contribution pursuant to
this Section 9 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages, liabilities and expenses referred to in paragraph (d) above shall
be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit
or proceeding. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the
fees and commissions received by it in connection with the Shares
underwritten by it and distributed to the public. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 9 are several in proportion to the
respective number of Shares set forth opposite their names in Schedule I
(or such number of Shares increased as set forth in Section 11
34
hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability from
claimants on claims that are the subject matter of such action, suit or
proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under
this Section 9 shall, subject to the requirements of Release No. 11330, be
paid by the indemnifying party to the indemnified party as such losses,
claims, damages, liabilities or expenses are incurred. The indemnity and
contribution agreements contained in this Section 9 and the
representations and warranties of each of the Fund, the Adviser and the
Sub-Adviser set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter, the Fund,
the Adviser, the Sub-Adviser or their trustees, directors, officers or any
person controlling the Fund, the Adviser or the Sub-Adviser, (ii)
acceptance of any Shares and payment therefor hereunder and (iii) any
termination of this Agreement. A successor to any Underwriter or to the
Fund, the Adviser or the Sub-Adviser or their trustees, directors,
officers or any person controlling the Fund, the Adviser or the
Sub-Adviser shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 9.
(h) The Fund, the Adviser and the Sub-Adviser each acknowledge that
the statements with respect to (1) the public offering price of the Shares
as set forth on the cover page of the Prospectus and (2) under the caption
35
"Underwriting" in the Prospectus, (i) the names of the Underwriters and
the number of Shares listed opposite such names in the table following the
first paragraph, (ii) the amounts of selling concessions and reallowances
of selling concessions, (iii) the tenth paragraph relating to confirmation
of sales to discretionary accounts, (iv) the eleventh and twelfth
paragraphs relating to stabilization and (v) the last paragraph relating
to the addresses of the lead manager constitute the only information
furnished in writing to the Fund by the Underwriters expressly for use in
such document. The Underwriters severally confirm that these statements
are correct in all material respects and were so furnished by or on behalf
of the Underwriters severally for use in the Prospectus.
(i) The indemnification provisions of this Section 9 that are
applicable to the Fund are subject to any applicable limitations and
provisions of Section 17(i) of the 1940 Act.
10. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase the Shares hereunder are subject to the accuracy of
and compliance with the representations, warranties and agreements of and by
each of the Fund, the Adviser and the Sub-Adviser contained herein on and as of
the date on which the Registration Statement becomes or became effective, the
date of the Prospectus (and of any amendment or supplement thereto) and the
Closing Date; to the accuracy and completeness of all statements made by the
Fund, the Adviser, the Sub-Adviser or any of their respective officers in any
certificate delivered to the Representatives or their counsel pursuant to this
Agreement, and to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the Registration Statement or such post-effective amendment
shall have become effective not
36
later than 5:30 p.m., New York City time, on the date hereof or at such
later date and time as shall be consented to in writing by you and all
filings, if any, required by Rules 497 and 430A under the 1933 Act and the
1933 Act Rules and Regulations shall have been timely made; no stop order
suspending the effectiveness of the Registration Statement or order
pursuant to Section 8(e) of the 1940 Act shall have been issued and no
proceeding for that purpose shall have been instituted or, to the
knowledge of the Fund, the Adviser, the Sub-Adviser or any Underwriter,
threatened by the Commission and any request of the Commission for
additional information (to be included in the Registration Statement or
the Prospectus or otherwise) shall have been complied with to your
satisfaction.
(b) That you shall have received on the Closing Date an opinion of
Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz, P.C. special counsel for the Fund,
dated the Closing Date and addressed to you, as the Representatives of the
several Underwriters, in substantially the form attached hereto as Exhibit
A. In rendering its opinion, Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz, P.C. may
rely, as to matters of Massachusetts law, upon the opinion of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ LLP dated as of the date thereof.
(c) That you shall have received on the Closing Date an opinion of
the Adviser's internal counsel, dated the Closing Date and addressed to
you, as Representatives of the several Underwriters, in substantially the
form attached hereto as Exhibit B.
(d) That you shall have received on the Closing Date an opinion of
Wolf, Block, ▇▇▇▇▇▇ and ▇▇▇▇▇-▇▇▇▇▇ LLP, special counsel to the
Sub-Adviser, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, in substantially the form
attached hereto as Exhibit C.
(e) That you shall have received on the Closing Date an opinion of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, dated the Closing Date and
addressed to you, as the
37
Representatives of the several underwriters, with respect to such matters
as you may require and the Fund, the Adviser, the Sub-Adviser and their
respective counsel shall have furnished to such counsel such documents as
they may request for the purpose of enabling them to pass upon such
matters.
(f) That you shall have received letters addressed to you, as the
Representatives of the several Underwriters and dated each of the date
hereof and the Closing Date from Ernst & Young LLP, independent registered
public accounting firm, substantially in the forms heretofore approved by
you.
(g) (i) No order suspending the effectiveness of the Registration
Statement or prohibiting or suspending the use of the Prospectus (or any
amendment or supplement to any of the foregoing) or any Prepricing
Prospectus shall have been issued and no proceedings for such purpose or
for the purpose of commencing an enforcement action against the Fund, the
Adviser or the Sub-Adviser, with respect to the transactions contemplated
by the Prospectus (or any amendment or supplement thereto) and this
Agreement, may be pending before or, to the knowledge of the Fund, the
Adviser, the Sub-Adviser or any Underwriter or in the reasonable view of
counsel to the Underwriters, shall be threatened or contemplated by the
Commission at or prior to the Closing Date and that any request for
additional information on the part of the Commission (to be included in
the Registration Statement, the Prospectus or otherwise) be complied with
to the satisfaction of the Representatives, (ii) there shall not have been
any change in the capital stock of the Fund nor any material increase in
debt of the Fund (other than in the ordinary course of business) from that
set forth in the Registration Statement or the Prospectus (or any
amendment or supplement to either of them) and the Fund shall not have
sustained any material liabilities or obligations, direct or contingent,
other than those reflected in or contemplated by the Registration
Statement or the Prospectus (or any amendment or supplement to either of
38
them), (iii) since the date of the Prospectus there shall not have been
any material, adverse change in the condition (financial or other),
business, prospects, properties, net assets or results of operations of
the Fund, the Adviser or the Sub-Adviser, (iv) none of the Fund, the
Adviser or the Sub-Adviser shall have sustained any material loss or
interference with their businesses from any court or from legislative or
other governmental action, order or decree or from any other occurrence
not described in the Registration Statement or the Prospectus (or any
amendment or supplement to either of them), and (v) all of the
representations and warranties of each of the Fund, the Adviser or the
Sub-Adviser contained in this Agreement shall be true and correct on and
as of the date hereof and as of the Closing Date as if made on and as of
the Closing Date.
(h) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change or any development involving a
prospective change, in or affecting the condition (financial or other),
general affairs, business, prospects, properties, net assets or results of
operations of the Fund, the Adviser or the Sub-Adviser not contemplated by
the Prospectus, which in your opinion, as the Representatives of the
several Underwriters, would materially, adversely affect the market for
the Shares or (ii) any event or development relating to or involving the
Fund, the Adviser, the Sub-Adviser or any officer, trustee, director, of
the Fund, the Adviser or the Sub-Adviser, which makes any statement of a
material fact made in the Prospectus untrue or which, in the opinion of
the Fund and its counsel or the Underwriters and their counsel, requires
the making of any addition to or change in the Prospectus in order to
state a material fact required by the 1933 Act, the 1940 Act, the Rules
and Regulations, the Advisers Act, the Advisers Act Rules and Regulations
or any other law to be stated therein or necessary in order to make the
statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading, if amending or
supplementing the Prospectus to reflect such event or
39
development would, in your opinion, as the Representatives of the several
Underwriters, materially, adversely affect the market for the Shares.
(i) That none of the Fund, the Adviser or the Sub-Adviser shall have
failed at or prior to the Closing Date to have performed or complied with
any of the agreements herein contained and required to be performed or
complied with by them at or prior to the Closing Date.
(j) The Shares shall have been accorded a rating of "Aaa" by ▇▇▇▇▇'▇
Investor Services, Inc. and "AAA" by Fitch Ratings, and letters and/or
press releases to such effect, dated on or before the Closing Date, shall
have been delivered to the Representatives.
(k) As of the Closing Date, and assuming receipt of the net proceeds
from the sale of Shares, the 1940 Act FundPreferred Shares Asset Coverage
and the FundPreferred Shares Basic Maintenance Amount (each as defined in
the Prospectus) each will be met.
(l) That you shall have received on the Closing Date a certificate,
dated such date, of the president, any managing director or any vice
president and of the controller, treasurer or assistant treasurer of each
of the Fund, the Adviser and the Sub-Adviser certifying that (i) the
signers have carefully examined the Registration Statement, the Prospectus
(and any amendments or supplements to either of them) and this Agreement,
(ii) the representations and warranties of the Fund (with respect to the
certificates from such Fund officers), the representations and warranties
of the Adviser (with respect to the certificates from such officers of the
Adviser) and the representations and warranties of the Sub-Adviser (with
respect to the certificates from such officers of the Sub-Adviser) in this
Agreement are true and correct on and as of the date of the certificate as
if made on such date, (iii) since the date of the Prospectus (and any
amendment or supplement thereto) there has not been any material,
40
adverse change in the condition (financial or other), business, prospects
(other than as a result of a change in the financial markets generally),
properties, net assets or results of operations of the Fund (with respect
to the certificates from such Fund officers), the Adviser (with respect to
the certificates from such officers of the Adviser) or the Sub-Adviser
(with respect to the certificates from such officers of the Sub-Adviser),
(iv) to the knowledge of such officers after reasonable investigation, no
order suspending the effectiveness of the Registration Statement or
prohibiting the sale of any of the Shares or having a material, adverse
effect on the Fund (with respect to the certificates from such Fund
officers), or the Adviser (with respect to the certificates from such
officers of the Adviser) or the Sub-Adviser (with respect to the
certificates from such officers of the Sub-Adviser) has been issued and no
proceedings for any such purpose are pending before or threatened by the
Commission or any court or other regulatory body, the NASD, any state
securities commission, any national securities exchange, any arbitrator,
any court or any other governmental, regulatory, self-regulatory or
administrative agency or any official, (v) each of the Fund (with respect
to certificates from such Fund officers), the Adviser (with respect to
certificates from such officers of the Adviser) and the Sub-Adviser (with
respect to certificates from such officers of the Sub-Adviser) has
performed and complied in all material respects with all agreements that
this Agreement require it to perform by such Closing Date, (vi) none of
the Fund (with respect to the certificate from such officers of the Fund)
or the Adviser (with respect to the certificate from such officers of the
Adviser) or the Sub-Adviser (with respect to the certificate from such
officers of the Sub-Adviser) has sustained any material loss or
interference with its business from any court or from legislative or other
governmental action, order or decree or from any other occurrence not
described in the Registration Statement or the Prospectus and any
amendment or supplement to either of them and (vii) with respect to the
certificate from such officers of the
41
Fund, there has not been any change in the capital stock of the Fund nor
any material increase in the debt of the Fund from that set forth in the
Prospectus (or any amendment or supplement thereto) and the Fund has not
sustained any material liabilities or obligations, direct or contingent,
other than those reflected in the Prospectus (or any amendment or
supplement thereto).
(m) That the Fund, the Adviser and the Sub-Adviser shall have
furnished to you such further letters, certificates, documents and
opinions of counsel as you shall reasonably request (including
certificates of officers of the Fund, the Adviser and the Sub-Adviser).
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and your counsel acting in good faith.
Any certificate or document signed by any officer of the Fund, the Adviser
or the Sub-Adviser and delivered to you, as the Representatives of the
Underwriters or to Underwriters' counsel, shall be deemed a representation and
warranty by the Fund, the Adviser or the Sub-Adviser to each Underwriter as to
the statements made therein.
11. Effective Date of Agreement. This Agreement shall become effective:
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
Registration Statement or a post-effective amendment thereto to be declared
effective before the offering of the Shares may commence, when the Registration
Statement or such post-effective amendment has become effective. Until such time
as this Agreement shall have become effective, it may be terminated by the Fund
by notifying you, or by you by notifying the Fund.
If any one or more of the Underwriters shall fail or refuse to purchase
Shares which it or they have agreed to purchase hereunder and the aggregate
number of Shares which
42
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate number of the Shares, each
non-defaulting Underwriter shall be obligated, severally, in the proportion
which the aggregate number of Shares set forth opposite its name in Schedule I
hereby bears to the aggregate number of Shares set forth opposite the names of
all non-defaulting Underwriters or in such other proportion as you may specify
in accordance with Section 7 of the ▇.▇. ▇▇▇▇▇▇▇ Master Agreement Among
Underwriters, to purchase Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase. If any Underwriter or
Underwriters shall fail or refuse to purchase Shares and the aggregate number of
Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares and arrangements satisfactory to you and the Fund for
the purchase of such Shares by one or more non-defaulting Underwriters or other
party or parties approved by you and the Fund are not made within 36 hours after
such default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Fund. In any such case which does not result
in termination of this Agreement, either you or the Fund shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect to any such default of any such Underwriter under this
Agreement. The term "Underwriter" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed in Schedule I hereto who, with
your approval and the approval of the Fund, purchases Shares which a defaulting
Underwriter agreed, but failed or refused, to purchase.
Any notice under this Section 11 may be made by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
12. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Fund, the
43
Adviser or the Sub-Adviser by notice to the Fund, the Adviser or the Sub-Adviser
if prior to the Closing Date, as the case may be, (i) trading in securities
generally on the NYSE or the Nasdaq Stock Market shall have been suspended or
limited or minimum prices shall have been established (ii) additional
governmental restrictions not in force on the date of this Agreement have been
imposed upon trading in securities generally or a general moratorium on
commercial banking activities shall have been declared by Federal or any state's
authorities or (iii) any outbreak or material escalation of hostilities or other
international or domestic calamity, crisis or change in political, financial,
economic, legal or regulatory conditions, occurs, the effect of which is such as
to make it, in your judgment, impracticable or inadvisable to commence or
continue the offering of the Shares at the offering price to the public set
forth on the cover page of the Prospectus or to enforce contracts for the resale
of the Shares by the Underwriters. Notice of such termination may be given to
the Fund, the Adviser or the Sub-Adviser by telegram, telecopy or telephone but
shall be subsequently confirmed by letter.
13. Expenses. The Fund agrees to pay the following costs and expenses and
all other costs and expenses incident to the performance by the Fund of its
obligations hereunder: (a) the preparation, printing or reproduction, filing
(including, without limitation, the filing or registration fees prescribed by
the 1933 Act, the 1934 Act, the 1940 Act and the Rules and Regulations) and
distribution of the Registration Statement (including exhibits thereto), the
Prospectus, each Prepricing Prospectus and the 1940 Act Notification and all
amendments or supplements to any of them, (b) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, the Prospectus, each
Prepricing Prospectus (and all amendments or supplements to any of them) as may
be reasonably requested for use in connection with the offering and sale of the
Shares, (c) the preparation, printing, authentication, issuance and delivery of
certificates (if any) for the Shares, including any stamp taxes and transfer
agent and registrar fees payable in connection with the
44
original issuance and sale of such Shares, (d) the registrations or
qualifications of the Shares for offer and sale under the securities or Blue Sky
laws of the several states as provided in Section 5(g) hereof, (e) the fees and
expenses of the Fund's independent accountants, counsel for the Fund and of the
transfer agent, (f) the expenses of delivery to the Underwriters and dealers
(including postage, air freight and the cost of counting and packaging) of
copies of the Prospectus, the Prepricing Prospectus and all amendments or
supplements to the Prospectus as may be requested for use in connection with the
offering and sale of the Shares, (g) the printing (or reproduction) and delivery
of this Agreement, any dealer agreements, the preliminary and supplemental Blue
Sky Memoranda and all other company-authorized agreements or other documents
printed (or reproduced) and delivered in connection with the offering of the
Shares, (h) fees charged by the securities rating agencies rating the Shares,
(i) the fees and expenses charged by the Depository Trust Company and its
nominee and (j) the fees and expenses charged by The Bank of New York, as
Auction Agent with respect to the Shares.
Notwithstanding the foregoing, in the event that the sale of the Shares is
not consummated pursuant to Section 2 hereof, the Adviser or the Sub-Adviser
will pay the costs and expenses of the Fund set forth above in this Section
13(a) through (i), and reimbursements of Underwriter expenses in connection with
the offering shall be made in accordance with Section 5(l) hereof.
14. Miscellaneous. Except as otherwise provided in Sections 5, 11 and 12
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (a) if to the Fund or the Adviser, c/o Nuveen
Advisory Corp., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇
▇. Berkshire, (b) if to the Sub-Adviser, ▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇ and (c) if to you, as Representatives
of the Underwriters, at the office of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, with a
copy to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
45
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Fund, the Adviser, the Sub-Adviser, their trustees, directors,
officers, and the other controlling persons referred to in Section 8 hereof and
their respective successors and assigns, to the extent provided herein and no
other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" or the term "successors and assigns" as
used in this Agreement shall include a purchaser from any Underwriter of any of
the Shares in his status as such purchaser.
A copy of the Amended and Restated Declaration of Trust of the Fund is on
file with the Secretary of State of The Commonwealth of Massachusetts. This
Agreement has been executed on behalf of the Fund by a vice-president of the
Fund in such capacity and not individually and the obligations of the Fund under
this Agreement are not binding upon such officer, any of the trustees of the
Fund or the shareholders of the Fund individually, but are binding only upon the
assets and property of the Fund.
15. Applicable Law; Counterparts. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
46
Please confirm that the foregoing correctly sets forth the agreement among
the Fund, the Adviser, the Sub-Adviser and the several Underwriters.
Very truly yours,
NUVEEN TAX-ADVANTAGED
FLOATING RATE FUND
By:
-------------------
Title:
NUVEEN ASSET MANAGEMENT
By:
-------------------
Title:
SPECTRUM ASSET MANAGEMENT,
INC.
By:
-------------------
Title:
47
Confirmed as of the date
first above written on
behalf of themselves and
the other several Under-
writers named in Schedule
I hereto.
AS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
By:
--------------------------------
Title:
48
SCHEDULE I
Underwriter Number of Shares
▇.▇. ▇▇▇▇▇▇▇ & Sons,
Inc.
Nuveen Investments, LLC
Total _________________________________________________
49
EXHIBIT A
FORM OF VEDDER, PRICE, ▇▇▇▇▇▇▇ & KAMMHOLZ, P.C. OPINION
(1) The Fund (i) has been formed and is validly existing under the
Declaration and the laws of the Commonwealth of Massachusetts as a
voluntary association with transferable shares of beneficial interest
commonly referred to as a "Massachusetts business trust", (ii) is in good
standing with the Secretary of the Commonwealth of Massachusetts and (iii)
has full power as a business trust to (a) conduct all the activities
conducted by it, (b) to own or lease all assets owned (or to be owned) or
leased (or to be leased) by it and (c) to conduct its business, in each
case as described in the Prospectus and the Registration Statement;
(2) [The description of the Shares contained under the caption
"Description of FundPreferred Shares" in the Prospectus conforms in all
material respects to the terms thereof contained in the Fund's Declaration
and Statement. The Outstanding Common Shares, as defined in the ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Opinion, have been duly authorized and are validly issued, fully
paid and (except as set forth under the caption "Certain Provisions in the
Declaration of Trust" in the Prospectus) nonassessable. The Shares to be
issued and delivered to and paid for by the Underwriters in accordance
with the Underwriting Agreement against payment therefor as provided by
the Underwriting Agreement have been duly authorized and when issued and
delivered to the Underwriters as so provided in the Underwriting Agreement
will have been validly issued and will be fully paid and (except as set
forth under the caption "Certain Provisions in the Declaration of Trust"
in the Prospectus) nonassessable. No person has any preemptive right in
respect of the Shares pursuant to the Declaration, the By-laws, the
Statement or Massachusetts law, or, to our knowledge, otherwise;]
50
(3) The Registration Statement is effective under the 1933 Act; any
required filing of the Prospectus pursuant to Rule 497 under the 1933 Act
has been made within the time periods required by Rule 497; no stop-order
suspending the effectiveness of the Registration Statement has been issued
and to the best of our knowledge, no proceeding for any such purpose has
been instituted or is pending or threatened in writing by the Commission;
(4) The Registration Statement, at the time it became effective, and the
Prospectus, as of the date thereof, (in each case, except for the
financial statements and other financial and statistical data contained
therein, as to which we express no opinion) comply as to form in all
material respects with the requirements of the 1933 Act and the 1940 Act;
(5) The statements made in the Prospectus and in the Statement of
Additional Information under the captions "Federal Income Tax Matters,"
insofar as they constitute matters of law or legal conclusions, have been
reviewed by us and constitute accurate statements of any such matters of
law or legal conclusions;
(6) To the best of our knowledge, there are no legal or governmental
proceedings pending or threatened in writing against the Fund, or to which
the Fund or any of its properties is subject, that are required to be
described in the Registration Statement or the Prospectus, but are not
described therein as required;
(7) The Fund has full power as a business trust to enter into the
Underwriting Agreement and the Fund Agreements and to perform all of the
terms and provisions required by such agreements to be performed by it and
(i) each of the Underwriting Agreement and the Fund Agreements has been
duly and validly authorized, executed and delivered by the Fund, (ii) each
of the Underwriting Agreement and the Fund Agreements complies in all
material respects with all applicable provisions of the 1940 Act and the
Advisers Act, as the case may
51
be, and (iii) each of the Fund Agreements constitutes a valid and binding
agreement of the Fund, enforceable against the Fund in accordance with its
terms.
(8) The Fund is registered under the 1940 Act as a closed-end diversified
management investment company;
(9) None of (i) the execution and delivery by the Fund of the
Underwriting Agreement and the Fund Agreements, (ii) the issuance and sale
by the Fund of the Shares as contemplated by the Underwriting Agreement or
(iii) the performance by the Fund of its obligations under the
Underwriting Agreement and the Fund Agreements or consummation by the Fund
of the transactions contemplated by the Underwriting Agreement and the
Fund Agreements (A) will result in a violation of the provisions of the
Declaration, the Statement or By-Laws of the Fund, or any material United
States of America, Illinois or Massachusetts law, ordinance, rule or
regulation applicable to the Fund which in our experience is normally
applicable to transactions of the type contemplated by the Underwriting
Agreement (except for any applicable state securities and Blue Sky law,
rule or regulation, about which we express no opinion), or order of any
United States of America, Illinois, Massachusetts court, governmental
instrumentality, securities exchange or association or arbitrator,
specifically naming the Fund and known to us or (B) violates or will
violate or constitutes or will constitute a breach of, or a default under,
any material agreement or instrument to which the Fund is party or by
which the Fund is bound that is filed as an exhibit to the Registration
Statement;
(10) No consent, approval, authorization, or order of any United States of
America, Illinois or Massachusetts governmental agency or body or
securities exchange or association, or, to our knowledge United States of
America, Illinois or Massachusetts court, is required by the Fund for the
consummation by the Fund of the transactions to be performed by the Fund,
or the performance by the Fund of all the terms and provisions
52
to be performed by or on behalf of it in each case as contemplated by the
Underwriting Agreement and the Fund Agreements, except (i) the absence of
which, either individually or in the aggregate would not have a material
adverse effect on the Fund, (ii) such as have been obtained under the
United States securities laws prior to the date hereof, and (iii) such as
may be required under state securities or Blue Sky laws of various
jurisdictions in accordance with the Underwriting Agreement such as may be
required under any Massachusetts securities law, rule or regulation, about
which we express no opinion.
We have participated in conferences with officers and employees of the Fund,
Adviser and the Sub-Adviser, representatives of the independent auditors for the
Fund, Massachusetts counsel to the Fund, the Underwriters and counsel for the
Underwriters at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although we are not passing
upon, and do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, except to the limited extent otherwise covered by paragraphs 2 and 5
hereof and have made no independent check or verification thereof, on the basis
of the foregoing, no facts have come to our attention that would have led us to
believe that (a) the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
contained therein not misleading or (b) the Prospectus, as of its issue date and
as of the Closing Date, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact required to be stated therein
or necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading (except for the
financial statements and other financial and statistical data included therein,
as to which we express no comment).
53
EXHIBIT B
FORM OF NUVEEN ASSET MANAGEMENT'S INTERNAL COUNSEL OPINION
i. The Adviser has been duly formed and is validly existing as a
corporation under the laws of its jurisdiction of incorporation with full power
and authority to own or lease all of the assets owned or leased by it and to
conduct its business as described in the Registration Statement and Prospectus
and to enter into and perform its obligations under the Underwriting Agreement
and the Investment Management Agreement.
ii. The Adviser is duly registered as an investment adviser under the
Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from
acting as investment adviser for the Fund as contemplated by the Investment
Management Agreement, the Registration Statement and the Prospectus.
iii. The Adviser has full power and authority to enter into each of the
Underwriting Agreement, the Investment Management Agreement and the Expense
Reimbursement Agreement (the Investment Management Agreement, the Letter
Agreement and the Expense Reimbursement Agreement are referred to collectively
as the "Adviser Agreements") and to carry out all the terms and provisions
thereof to be carried out by it, and each such agreement has been duly and
validly authorized, executed and delivered by the Adviser; each of the
Underwriting Agreement and each Adviser Agreement complies in all material
respects with all provisions of the 1940 Act and the Advisers Act; and assuming
due authorization, execution and delivery by the other parties thereto and that
performance of the Underwriting Agreement and each Adviser Agreement by such
other parties will not violate law, agreements to which such other parties or
their properties are subject or orders applicable to such other parties, the
Underwriting Agreement and each Adviser Agreement constitute a legal, valid and
binding obligation of the Adviser, enforceable against the Adviser in accordance
with its terms, (1) subject, as to enforcement, to applicable bankruptcy,
54
insolvency and similar laws affecting creditors' rights generally and to general
equitable principles (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (2) except as rights to indemnity thereunder
may be limited by federal or state securities laws.
iv. Neither (A) the execution and delivery by the Adviser of the Underwriting
Agreement or any Adviser Agreement nor (B) the consummation by the Adviser of
the transactions contemplated by, or the performance of its obligations under
the Underwriting Agreement or any Adviser Agreement conflicts or will conflict
with, or results or will result in a breach of, the charter or by-laws of the
Adviser or any agreement or instrument to which the Adviser is a party or by
which the Adviser is bound, or any federal law, rule or regulation, any
provision of the Delaware General Corporation Law or order of any court,
governmental instrumentality, securities exchange or association or arbitrator,
whether foreign or domestic, specifically naming the Adviser and known to
counsel, except in each case for such conflicts or breaches which do not, either
alone or in the aggregate, have a material adverse effect on the Adviser's
ability to perform its obligations under the Underwriting Agreement and the
Adviser Agreements, and except that, in the published opinion of the Commission,
the indemnification provisions in the Underwriting Agreement and the Adviser
Agreements, insofar as they relate to indemnification for liabilities arising
under the 1933 Act, are against public policy as expressed in the 1933 Act and
therefore unenforceable.
v. No consent, approval, authorization or order of any court (to my
knowledge), governmental agency or body or securities exchange or association,
whether foreign or domestic, is required for the consummation of the
transactions contemplated in, or the performance by the Adviser of its
obligations under, the Underwriting Agreement and any Adviser Agreement, except
(i) such as have been obtained under the federal securities laws and (ii) may be
required by the New York Stock Exchange or under state securities or "blue sky"
laws, in connection with the purchase and distribution of the Shares by the
Underwriters
55
pursuant to the Underwriting Agreement.
vi. To the best of my knowledge, there is no legal or governmental
proceeding pending or threatened against the Adviser that is either (i) required
to be described in the Registration Statement or Prospectus that is not already
described or (ii) which would, under Section 9 of the Investment Company Act,
make the Adviser ineligible to act as the Fund's investment adviser.
I have not checked the accuracy and completeness of or otherwise
verified, and am not passing upon and assume no responsibility for the accuracy
or completeness of, the statements contained in the Registration Statement or
the Prospectus. We have participated in conferences with representatives of the
Adviser at which the contents of the Registration Statement and Prospectus were
discussed. No facts have come to my attention that cause me to believe that the
description of the Adviser and its business, and the statements attributable to
the Adviser, in the Registration Statement, at the time it became effective (but
after giving effect to any changes incorporated pursuant to Rule 430A under the
Act), contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading (except that I express no view with respect to the
financial statements, including notes and schedules thereto, or any other
financial, statistical or accounting data included therein), or that the
description of the Adviser and its business, and the statements attributable to
the Adviser, in the Prospectus, as of the date it was filed with the Commission
pursuant to Rule 497 under the Act and as of the date hereof, 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 (except that I
express no view with respect to the financial statements, including notes and
schedules thereto, or any other financial, statistical or accounting data
included therein).
56
EXHIBIT C
FORM OF SPECTRUM ASSET MANAGEMENT, INC.'S SPECIAL COUNSEL OPINION
i. The Sub-Adviser has been duly formed and is validly existing as a
corporation under the laws of its jurisdiction of incorporation with full
corporate power and authority to own or lease all of the assets owned or leased
by it and to conduct its business as described in the Registration Statement and
Prospectus and to enter into and perform its obligations under the Underwriting
Agreement, the Letter Agreement and the Sub-Advisory Agreement.
ii. The Sub-Adviser is duly registered as an investment adviser under the
Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from
acting as investment adviser for the Fund as contemplated by the Sub-Advisory
Agreement, the Registration Statement and the Prospectus.
iii. The Adviser has full corporate power and authority to enter into each of
the Underwriting Agreement, the Letter Agreement and the Sub-Advisory Agreement
and to carry out all the terms and provisions thereof to be carried out by it,
and each such agreement has been duly and validly authorized, executed and
delivered by the Sub-Adviser; each of the Underwriting Agreement, the Letter
Agreement and the Sub-Advisory Agreement complies in all material respects with
all provisions of the 1940 Act and the Advisers Act; and assuming due
authorization, execution and delivery by the other parties thereto and that
performance of the Underwriting Agreement and the Sub-Advisory Agreements by
such other parties will not violate law, agreements to which such other parties
or their properties are subject or orders applicable to such other parties, the
Underwriting Agreement and the Sub-Advisory Agreements constitute a legal, valid
and binding obligation of the Sub-Adviser, enforceable against the Sub-Adviser
in accordance with its terms, (1) subject, as to enforcement, to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and to general
57
equitable principles (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (2) except as rights to indemnity thereunder
may be limited by federal or state securities laws.
iv. Neither (A) the execution and delivery by the Sub-Adviser of the
Underwriting Agreement or the Sub-Advisory Agreement nor (B) the consummation by
the Sub-Adviser of the transactions contemplated by, or the performance of its
obligations under the Underwriting Agreement or the Sub-Advisory Agreement
conflicts or will conflict with, or results or will result in a breach of, the
Amended and Restated Certificate of Incorporation or by-laws of the Sub-Adviser
or any agreement or instrument to which the Sub-Adviser is a party or by which
the Sub-Adviser is bound that is known to such counsel, or any federal law, rule
or regulation, any provision of the Connecticut Business Corporation Act or
order of any court, governmental instrumentality, securities exchange or
association or arbitrator, whether foreign or domestic, specifically naming the
Sub-Adviser and known to counsel, except in each case for such conflicts or
breaches which do not, either alone or in the aggregate, have a material adverse
effect on the Sub-Adviser's ability to perform its obligations under the
Underwriting Agreement, the Letter Agreement and the Sub-Advisory Agreement, and
except that, in the published opinion of the Commission, the indemnification
provisions in the Underwriting Agreement, the Letter Agreement and the
Sub-Advisory Agreement, insofar as they relate to indemnification for
liabilities arising under the 1933 Act, are against public policy as expressed
in the 1933 Act and therefore unenforceable.
v. No material consent, approval, authorization or order of any court (to our
knowledge), governmental agency or body or securities exchange or association,
whether foreign or domestic, is required for the consummation of the
transactions contemplated in, or the performance by the Sub-Adviser of its
obligations under, the Underwriting Agreement, the Letter Agreement and the
Sub-Advisory Agreement, except (i) such as have been obtained under the federal
securities laws and (ii) may be required by the New York Stock Exchange
58
or under state securities or "blue sky" laws, in connection with the purchase
and distribution of the Shares by the Underwriters pursuant to the Underwriting
Agreement.
vi. To the best of our knowledge, there is no legal or governmental
proceeding pending or threatened against the Sub-Adviser that is either (i)
required to be described in the Registration Statement or Prospectus that is not
already described or (ii) that would, under Section 9 of the Investment Company
Act, make the Sub-Adviser ineligible to act as the Fund's investment
sub-adviser.
We have not checked the accuracy and completeness of or otherwise
verified, and are not passing upon and assume no responsibility for the accuracy
or completeness of, the statements contained in the Registration Statement or
the Prospectus. We have participated in conferences with representatives of the
Sub-Adviser at which the contents of the Registration Statement and Prospectus
were discussed. No facts have come to our attention that cause us to believe
that the description of the Sub-Adviser and its business, and the statements
attributable to the Sub-Adviser, in the Registration Statement, at the time it
became effective (but after giving effect to any changes incorporated pursuant
to Rule 430A under the Act), contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading (except that we express no view
with respect to the financial statements, including notes and schedules thereto,
or any other financial, statistical or accounting data included therein), or
that the description of the Sub-Adviser and its business, and the statements
attributable to the Sub-Adviser, in the Prospectus, as of the date it was filed
with the Commission pursuant to Rule 497 under the Act and as of the date
hereof, 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 (except that we express no view with respect to the financial
statements, including notes and schedules thereto, or any other financial,
statistical or accounting data included therein).
59