EXHIBIT h
Municipal Auction Rate Cumulative Preferred Shares
NUVEEN DIVIDEND ADVANTAGE MUNICIPAL FUND 3
__ Shares, Series __
Liquidation Preference $25,000 Per Share
UNDERWRITING AGREEMENT
November __, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
[ ]
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Nuveen Dividend Advantage Municipal Fund 3, a Massachusetts business
trust (the "Fund"), proposes, upon the terms and conditions set forth herein, to
issue and sell an aggregate of __ shares of its Municipal Auction Rate
Cumulative Preferred Shares, Series __, (the "MuniPreferred"), par value $.01
per share, with a liquidation preference of $25,000 per share (the shares of
MuniPreferred to be sold hereby are referred to herein, collectively, as the
"Shares"). The Shares will be authorized by, and subject to the terms and
conditions of, the Statement Establishing and Fixing the Rights and Preferences
of Municipal Auction Rate Cumulative Preferred Shares (the "Statement") in the
form filed as an exhibit to the registration statement referred to in Section 1
of this agreement. Nuveen Advisory Corp., a Delaware corporation (the
"Adviser"), is the Fund's investment adviser. This is to confirm the agreement
concerning the purchase of the Shares from the Fund by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
(the "Representative") and [ ] (each an "Underwriter", and together
with the Representative, the "Underwriters"). The Representative has been duly
authorized by each of the Underwriters to execute this Underwriting Agreement
(the "Agreement") on behalf of such Underwriters and has been duly authorized to
act hereunder on behalf of each of the Underwriters.
The Fund has entered into an investment management agreement with the
Adviser, an exchange traded fund custody agreement with The Chase Manhattan
Bank, a shareholder transfer agency agreement with The Chase Manhattan Bank and
an auction agency agreement, including the Basic Terms in respect thereof, with
Bankers Trust Company. Such agreements are hereinafter referred to as the
"Investment Management Agreement", the "Custodian Agreement", the "Transfer
Agency Agreement" and the "Auction Agency Agreement", respectively.
Collectively, the Investment Management Agreement, the Custodian Agreement, the
Transfer Agency Agreement and the Auction Agency Agreement are hereinafter
referred to as the "Fund Agreements".
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1. Registration Statement and Prospectus. The Fund has prepared, in
conformity 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 Securities and Exchange Commission (the
"Commission"), promulgated 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 under the 1933 Act and the 1940 Act (the
"registration statement"), including a prospectus relating to the Shares, and
has filed the registration statement and prospectus in accordance with the 1933
Act and the 1940 Act. The Fund also has filed a notification of registration of
the Fund as an investment company under the 1940 Act on Form N-8A (the "1940 Act
Notification"). The term "Registration Statement" as used in this Agreement
means the registration statement (including all financial schedules and
exhibits), as amended at the time it becomes effective under the 1933 Act, or,
if the registration statement became effective under the 1933 Act prior to the
execution of this Agreement, as amended or supplemented at the time it became
effective, prior to the execution of this Agreement. If it is contemplated, at
the time this Agreement is executed, that a post-effective amendment to the
registration statement will be filed under the 1933 Act and must be declared
effective before the offering of the Shares may commence, the term "Registration
Statement" as used in this Agreement means the registration statement as amended
by said post-effective amendment. If the Fund has filed an abbreviated
registration statement to register an additional amount of Shares pursuant to
Rule 462(b) under the 1933 Act (the "Rule 462 Registration Statement"), then any
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 or statement of
additional information included in the Registration Statement omit information
in reliance on Rule 430A under the 1933 Act, all references to the Prospectus
shall be deemed to include, without limitation, the prospectus, the statement of
additional information and the term sheet, taken together, provided to the
Underwriters by the Fund in reliance on Rule 434 under the 1933 Act and filed
with the Commission pursuant to Rule 497(h) under the 1933 Act. The term
"Prepricing Prospectus" as used in this Agreement means the prospectus and
statement of additional information subject to completion in the forms included
in the registration statement at the time of filing of pre-effective amendment
No. 1 to the registration statement under the 1933 Act with the Commission on
[ ], 2001, 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 and statement of additional
information relating to the Fund other than the Prospectus approved in writing
by or directly or indirectly prepared by the Fund or the Adviser; it being
understood that the definition of Prepricing Prospectus above shall not include
any Prepricing Prospectus prepared by the Underwriters unless approved in
writing by the Fund or Adviser. The terms "Registration Statement", "Prospectus"
and "Prepricing Prospectus" shall also include any financial statements
incorporated by reference therein.
The Fund has furnished the Underwriters 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 sell to the
Underwriters, and, upon the basis of
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the representations, warranties and agreements of the Fund and the Adviser
herein contained and subject to all the terms and conditions set forth herein,
the Underwriters agree to purchase from the Fund, at a purchase price of $______
per Share, the number of shares of MuniPreferred set forth opposite the names of
the Underwriters in Schedule I hereto.
3. Terms of Public Offering. The Fund and the Adviser have been
advised by the Underwriters that the Underwriters propose to make a public
offering of the Shares as soon after the Registration Statement and this
Agreement have become effective as in the Underwriters' judgment is advisable
and initially to offer the Shares upon the terms set forth in the Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to the
Underwriters of and payment for the Shares shall be made at the office of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, at 9:30
A.M., New York City time, on November __, 2001 (the "Closing Date"). The place
of closing for the Shares and the Closing Date may be varied by agreement
between the Representative and the Fund.
The certificate evidencing the Shares shall be delivered to and
registered at The Depository Trust Company, against payment of the purchase
price therefor in immediately available funds.
5. Agreements of the Fund and the Adviser. The Fund and the Adviser,
jointly and severally, agree with the 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 endeavor to cause the Registration Statement or such
post-effective amendment to become effective under the 1933 Act as soon as
possible and will advise the Underwriters promptly and, if requested by the
Underwriters, will confirm such advice in writing when the Registration
Statement or such post-effective amendment has become effective.
(b) The Fund will advise the Underwriters promptly and, if requested
by the Underwriters, will confirm such advice in writing: (i) of any request
made by the Commission for amendment of or a supplement to the Registration
Statement, any Prepricing Prospectus or the Prospectus (or any amendment or
supplement to any of the foregoing) or for additional information, (ii) of the
issuance by the Commission, the National Association of Securities Dealers, Inc.
(the "NASD"), any state securities commission, any national securities exchange,
any arbitrator, any court or any other governmental, regulatory, self-regulatory
or administrative agency or any official of any order suspending the
effectiveness of the Registration Statement, prohibiting or suspending the use
of the Prospectus or any Prepricing Prospectus, or any sales material (as
hereinafter defined), of any notice pursuant to Section 8(e) of the 1940 Act, of
the suspension of qualification of the Shares for offering or sale in any
jurisdiction, or the initiation of any proceeding for any such purposes, (iii)
of receipt by the Fund, the Adviser, any affiliate of the Fund or the Adviser or
any representative or attorney of the Fund or the 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 to the Fund (if such communication relating to the Fund is
received by such person within three years after the date
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of this Agreement), the Registration Statement, the 1940 Act Notification, the
Prospectus, any Prepricing Prospectus, any sales material (as herein defined)
(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 the Adviser or of the happening of any other event which makes
any statement of a material fact made in the Registration Statement or the
Prospectus or any sales material (as herein defined) (or any amendment or
supplement to any of the foregoing) untrue or which requires the making of any
additions to or changes in the Registration Statement or the Prospectus, or any
Prepricing Prospectus or any sales material (as herein defined) (or any
amendment or supplement to any of the foregoing) in order to state a material
fact required by the 1933 Act, the 1940 Act or the Rules and Regulations to be
stated therein or necessary in order to make the statements therein, in 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 sales material (as herein defined) (or any
amendment or supplement to any of the foregoing) to comply with the 1933 Act,
the 1940 Act, the Rules and Regulations or any other law or order of any court
or regulatory body. If at any time the Commission, the NASD, any state
securities commission, any national securities exchange, any arbitrator, any
court or any other governmental, regulatory, self-regulatory or administrative
agency or any official shall issue any order suspending the effectiveness of the
Registration Statement, prohibiting or suspending the use of the Prospectus or
any sales material (as herein defined) (or any amendment or supplement to any of
the foregoing) or suspending the qualification of the Shares for offering or
sale in any jurisdiction, the Fund will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible time.
(c) The Fund will furnish to the Underwriters, without charge, three
signed copies of the Registration Statement as originally filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits thereto, and will also furnish to the Underwriters, without charge,
such number of conformed copies of the Registration Statement as originally
filed and of each amendment thereto, but without exhibits, as the Underwriters
may request.
(d) The Fund will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus, or any sales
material (as herein defined), of which the Underwriters shall not previously
have been advised or to which the Underwriters shall reasonably object after
being so advised or (ii) so long as, in the opinion of counsel for the
Underwriters, a Prospectus is required by the 1933 Act to be delivered in
connection with sales by the Underwriters or any dealer, file any information,
documents or reports pursuant to the Securities Exchange Act of 1934, as amended
(the "1934 Act") or the 1940 Act, without delivering a copy of such information,
documents or reports to the Underwriters prior to or concurrently with such
filing.
(e) Prior to the execution and delivery of this Agreement, the Fund
has delivered to the Underwriters, without charge, in such quantities as the
Underwriters have requested, copies of each form of the Prepricing Prospectus.
The Fund consents to the use, in accordance with the provisions of the 1933 Act
and with the state securities or blue sky laws of the jurisdictions in which the
Shares are offered by the Underwriters and by dealers, prior to the date of the
Prospectus, of each Prepricing Prospectus so furnished by the Fund.
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(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the opinion of
counsel for the Underwriters a prospectus is required by the 1933 Act to be
delivered in connection with sales by the Underwriters or any dealer, the Fund
will expeditiously deliver to the Underwriters and each dealer, without charge,
as many copies of the Prospectus (and of any amendment or supplement thereto) as
the Underwriters may request. The Fund consents to the use of the Prospectus
(and of any amendment or supplement thereto) in accordance with the provisions
of the 1933 Act and with the state securities or blue sky laws of the
jurisdictions in which the Shares are offered by the Underwriters and by all
dealers to whom Shares may be sold, both in connection with the offering and
sale of the Shares and for such period of time thereafter as the Prospectus is
required by the 1933 Act to be delivered in connection with sales by the
Underwriters or any 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 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 federal law, rule or
regulation, or any state securities or blue sky disclosure laws, rules or
regulations, the Fund will forthwith prepare and, subject to the provisions of
paragraph (d) above, promptly file with the Commission an appropriate supplement
or amendment thereto, and will expeditiously furnish to the Underwriters and
dealers, without charge, a reasonable number of copies thereof. In the event
that the Fund and the Representative agree that the Registration Statement or
the Prospectus should be amended or supplemented, the Fund, if requested by the
Representative, will promptly issue a press release announcing or disclosing the
matters to be covered by the proposed amendment or supplement.
(g) The Fund will make generally available to its security holders an
earnings statement, which need not be audited, covering a twelve-month period
ending not later than 15 months after the effective date of the Registration
Statement as soon as practicable after the end of such period, which earnings
statement shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule
158 of the 1933 Act Rules and Regulations.
(h) During the period of five years hereafter, the Fund will furnish
to the Underwriters (i) as soon as available, a copy of each report of the Fund
mailed to stockholders or filed with the Commission or furnished to the American
Stock Exchange (the "AMEX") other than reports on Form N-SAR, and (ii) from time
to time such other information concerning the Fund as the Underwriters may
reasonably request.
(i) The Fund will apply the net proceeds from the sale of the Shares
substantially in accordance with the description set forth in the Prospectus and
in such a manner as to comply with the investment objectives, policies and
restrictions of the Fund as described in the Prospectus.
(j) The Fund will timely file the requisite copies of the Prospectus
with the Commission pursuant to Rule 497(c) or Rule 497(h) of the 1933 Act Rules
and Regulations, whichever is applicable or, if applicable, will timely file the
certification permitted by Rule 497(j) of the 1933 Act Rules and Regulations and
will advise the Representative of the time and manner of such filing.
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(k) Except as provided in this Agreement, the Fund will not sell,
contract to sell, or otherwise dispose of any senior securities (as defined in
the 1940 Act) of the Fund, or grant any options or warrants to purchase senior
securities of the Fund, for a period of 120 days after the date of the
Prospectus, without the prior written consent of the Representative.
(l) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, neither the Fund nor the Adviser has taken, nor will
it take, directly or indirectly, any action designed to or that might reasonably
be expected to cause or result in stabilization or manipulation of the price of
any securities issued by the Fund to facilitate the sale or resale of the
Shares.
(m) The Fund will use its best efforts to cause the MuniPreferred,
prior to the Closing Date, to be assigned a rating of `Aaa' by ▇▇▇▇▇'▇ Investors
Service, Inc. ("Moody's) and AAA by Standard & Poor's Rating Group ("S&P" and,
together with Moody's, the "Rating Agencies").
(n) The Fund and the Adviser will use their best efforts to perform
all of the agreements required of them and discharge all conditions to closing
as set forth in this Agreement.
6. Representations and Warranties of the Fund and the Adviser. The
Fund and the Adviser, jointly and severally, represent and warrant to the
Underwriters 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. The Commission has not issued any order
preventing or suspending the use of any 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 and the Prospectus and any supplement
or amendment thereto when filed with the Commission under Rule 497 of the 1933
Act Rules and Regulations and the 1940 Act Notification when originally filed
with the Commission and any amendment or supplement thereto when filed with the
Commission, complied or will comply in all material respects with the provisions
of the 1933 Act, the 1940 Act and the Rules and Regulations and did not or will
not at any such times contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, except that this representation and warranty
does not apply to statements in or omissions from the Registration Statement or
the Prospectus made in reliance upon and in conformity with information relating
to the Underwriters furnished to the Fund in writing by or on behalf of the
Underwriters expressly for use therein.
(c) All the outstanding shares of beneficial interest of the Fund have
been duly authorized and validly issued, are fully paid and nonassessable and
are free of any preemptive or similar rights, except that, as set forth in the
Registration Statement, shareholders of a Massachusetts business trust may under
certain circumstances be held personally liable for its obligations; the Shares
have been duly authorized and, when issued and delivered to the
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Underwriters against payment therefor in accordance with the terms hereof, will
be validly issued, fully paid and nonassessable and free of any preemptive or
similar rights that entitle or will entitle any person to acquire any Shares
upon issuance thereof by the Fund, except as stated above, and will conform to
the description thereof in the Registration Statement and the Prospectus (and
any amendment or supplement to either of them); and the shares of beneficial
interest of the Fund conforms to the description thereof in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them).
(d) The Fund has been duly organized and is validly existing and in
good standing as a voluntary association (commonly referred to as a
"Massachusetts business trust") under the laws of the Commonwealth of
Massachusetts, with full power and authority to conduct its business as
described in the Registration Statement and the Prospectus (and any amendment or
supplement to either of them), and is duly registered and qualified to conduct
its business and is in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business requires such
registration or qualification; and 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, and there are no agreements,
contracts, indentures, leases or other instruments that are required to be
described in the Registration Statement or the Prospectus (and 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, as
amended (the "Declaration"), the Statement or by-laws (the "By-Laws"), or other
organizational documents (together, the "Organizational Documents") of the Fund
or of any law, ordinance, administrative or governmental rule or regulation of
any decree of the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court or governmental agency,
body or official having jurisdiction over the Fund, or in default in any
material respect in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of indebtedness or
in any material agreement, indenture, lease or other instrument to which the
Fund is a party or by which it or any of its properties may be bound.
(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 (A) requires any consent, approval, authorization or other order of
or registration or filing with, the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court,
regulatory body, administrative agency or other governmental body, agency or
official (except such as may have been obtained prior to the date hereof and
such as may be required for compliance with the state securities or blue sky
laws of various jurisdictions and the filing of the statement with the Secretary
of State of the Commonwealth of Massachusetts which have been or will be
effected in accordance with this Agreement) or conflicts or will conflict with
or constitutes or will constitute a breach of, or a default under, the
Organizational Documents of the Fund or (B) conflicts or will conflict with or
constitutes or will constitute a breach of, or a
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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
violates or will violate any statute, law, regulation or judgment, injunction,
order or decree applicable to the Fund or any of its properties, or will result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Fund pursuant to the terms of any agreement or
instrument to which it is a party or by which it may be bound or to which any of
its property or assets is subject. The Fund is not subject to any order of any
court or of any arbitrator, governmental authority or administrative agency.
(h) The accountants, ▇▇▇▇▇ & Young LLP, who have certified or shall
certify the financial statements included or incorporated by reference in the
Registration Statement and the Prospectus (or any amendment or supplement to
either of them), are independent public accountants as required by the 1933 Act,
the 1940 Act and the Rules and Regulations.
(i) The financial statements, together with related schedules and
notes, included or incorporated by reference in the Registration Statement and
the Prospectus (and any amendment or supplement to either of them), present
fairly the financial position, results of operations and changes in financial
position of the Fund on the basis stated or incorporated by reference in the
Registration Statement at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data included
in the Registration Statement and the Prospectus (and any amendment or
supplement to either of them), are accurately presented and prepared on a basis
consistent with such financial statements and the books and records of the Fund.
(j) The execution and delivery of, and the performance by the Fund of
its obligations under, this Agreement and the Fund Agreements have been duly and
validly authorized by the Fund, and this Agreement and the Fund Agreements have
been duly executed and delivered by the Fund and constitute the valid and
legally binding agreements of the Fund, enforceable against the Fund in
accordance with their terms, except as rights to indemnity and contribution
hereunder and thereunder may be limited by federal or state securities laws.
(k) Except as disclosed in the Registration Statement and 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 (or any amendment or supplement to either of them),
the Fund has not incurred any liability or obligation, direct or contingent, or
entered into any transaction, not in the ordinary course of business, that is
material to the Fund, and there has not been any change in the shares of
beneficial interest, or material increase in the short-term debt or long-term
debt, of the Fund, or any material adverse change, or any development involving
or which may reasonably be expected to involve, a prospective material adverse
change, in the condition (financial or other), business, prospects, properties,
net assets or results of operations of the Fund, whether or not arising in the
ordinary course of business.
(l) The Fund has filed all tax returns required to be filed, which
returns are complete and correct in all material respects, and the Fund is not
in material default in the
9
payment of any taxes which were payable pursuant to said returns or any
assessments with respect thereto.
(m) The Fund is registered under the 1940 Act as a closed-end
non-diversified management investment company, and the 1940 Act Notification has
been duly filed with the Commission and, at the time of filing thereof and any
amendment or supplement thereto, conformed in all material respects with all
applicable provisions of the 1940 Act and the Rules and Regulations. The Fund
is, and at all times through the completion of the transactions contemplated
hereby, will be, in compliance in all material respects with the terms and
conditions of the 1933 Act and the 1940 Act. No person is serving or acting as
an officer, director or investment adviser of the Fund except in accordance with
the provisions of the 1940 Act and the Rules and Regulations and 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").
(n) As required by Subchapter M of the Internal Revenue Code of 1986,
as amended (the "Code"), the Fund is currently in compliance with the
requirements to qualify as a regulated investment company under the Code.
(o) The Fund's Common Shares (as defined in the Prospectus) are duly
listed on the AMEX.
(p) The Fund has not distributed and, prior to the later to occur of
(i) the Closing Date and (ii) completion of the distribution of the Shares, will
not distribute any offering material in connection with the offering and sale of
the Shares other than the Registration Statement, the Prepricing Prospectus, the
Prospectus or other materials, if any, permitted by the 1933 Act, the 1940 Act
or the Rules and Regulations.
(q) No holder of any security of the Fund has any right to require
registration of shares of beneficial interest, shares of MuniPreferred or any
other security of the Fund because of the filing of the Registration Statement
or consummation of the transactions contemplated by this Agreement.
(r) 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.
(s) Except as stated in this Agreement and in the Prospectus (and any
amendment or supplement thereto), the Fund has not taken, nor will it take,
directly or indirectly, any action designed to or which might reasonably be
expected to cause or result in stabilization or manipulation of the price of any
securities issued by the Fund to facilitate the sale or resale of the Shares,
and the Fund is not aware of any such action taken or to be taken by any
affiliates of the Fund.
(t) The Fund has filed in a timely manner each document or report
required to be filed by it pursuant to the 1940 Act, the 1940 Act Rules and
Regulations, the 1934 Act and the rules and regulations of the Commission
promulgated thereunder (the "1934 Act Rules and Regulations"); each such
document or report at the time it was filed conformed to the
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requirements of the 1934 Act and the 1934 Act Rules and Regulations; and none of
such documents or reports contained an untrue statement of any material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
(u) All advertising, sales literature or other promotional material
(including "prospectus wrappers," "broker kits," "road show slides" and "road
show scripts") authorized in writing by or prepared by the Fund or the Adviser
for use in connection with the offering and sale of the Shares (collectively,
"sales material") complied and comply in all material respects, to the Fund's
and Adviser's best knowledge, with the applicable requirements of the 1933 Act,
the 1940 Act, the Rules and Regulations and the rules and interpretations of the
NASD and no such sales material contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
7. Representations and Warranties of the Adviser. The Adviser
represents and warrants to the Underwriters as follows:
(a) The Adviser is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them), and is duly
registered and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of its
business requires such registration or qualification.
(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 Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules
and Regulations from acting under the Investment Management Agreement for the
Fund as contemplated by the Prospectus (or any amendment or supplement thereto).
There does not exist any proceeding, to the best of the Adviser's knowledge
after reasonable investigation, or any facts or circumstances the existence of
which could lead to any proceeding which might adversely affect 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, or to which the
Adviser or any of its properties is subject, that are required to be described
in the Registration Statement or the Prospectus (or any amendment or supplement
to either of them), but are not described as required or that may reasonably be
expected to involve a prospective material adverse change, in the condition
(financial or other), business, prospects, properties, assets or results of
operations of the Adviser or on the ability of the Adviser to perform its
obligations under this Agreement and the Investment Management Agreement.
(d) The Adviser is not in violation of its corporate charter or
by-laws, or other organizational documents, in default under any material
agreement, indenture or instrument or in breach or violation of any judgment,
decree, order, rule or regulation of any court or governmental or
self-regulatory agency or body.
11
(e) Neither the execution, delivery or performance of this Agreement
or the Investment Management Agreement by the Adviser, nor the consummation by
the Adviser of the transactions contemplated hereby or thereby (A) requires the
Adviser to obtain any consent, approval, authorization or other order of or
registration or filing with, the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court,
regulatory body, administrative agency or other governmental body, agency or
official or conflicts or will conflict with or constitutes or will constitute a
breach of or a default under, the corporate charter or by-laws, or other
organizational documents, of the Adviser, except where the failure to obtain
such consent, approval, authorization or other order of, or make such
registration or filing, or such conflict, breach or default would not have a
material adverse effect on the financial condition, business, properties, net
assets or result of operations of the Adviser or on the ability of the Adviser
to perform its obligations under this Agreement and the Investment Management
Agreement or (B) conflicts or will conflict with or constitutes or will
constitute a breach of or a default under, any material agreement, indenture,
lease or other instrument to which the Adviser is a party or by which it or any
of its properties may be bound, or violates or will violate any statute, law,
regulation or filing or judgment, injunction, order or decree applicable to the
Adviser or any of its properties or will result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Adviser
pursuant to the terms of any agreement or instrument to which 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 where such conflict, breach, default or violation
would not have a material adverse effect on the financial condition, business,
properties, net assets or results of operations of the Adviser or on the ability
of the Adviser to perform its obligations under this Agreement and the
Investment Management Agreement. The Adviser is not subject to any order of any
court or of any arbitrator, governmental authority or administrative agency,
except such orders which do not have a material adverse effect on the financial
condition, business, properties, net assets or results of operations of the
Adviser or on the ability of the Adviser to perform its obligations under this
Agreement and the Investment Management Agreement.
(f) The execution and delivery of, and the performance by the Adviser
of its obligations under, this Agreement and the Investment Management Agreement
have been duly and validly authorized by the Adviser, and this Agreement and the
Investment Management Agreement have been duly executed and delivered by the
Adviser and each constitutes the valid and legally binding agreement of the
Adviser, enforceable against the Adviser in accordance with its terms, except as
rights to indemnity and contribution hereunder may be limited by federal or
state securities laws.
(g) The Adviser has the financial resources available to it necessary
for the performance of its services and obligations as contemplated in the
Prospectus (or any amendment or supplement thereto) and under this Agreement and
the Investment Management Agreement.
(h) The description of the Adviser in the Registration Statement and
the Prospectus (and any amendment or supplement thereto) complied and comply in
all material respects with the provisions 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
12
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(i) Except as disclosed in the Registration Statement and 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 (or any amendment or supplement to either of them),
the Adviser has not incurred any liability or obligation, direct or contingent,
or entered into any transaction, not in the ordinary course of business, that is
material to the Adviser or the Fund and that is required to be disclosed in the
Registration Statement or the Prospectus and there has not been any material
adverse change, or any development involving or which may reasonably be expected
to involve, a prospective material adverse change, in the condition (financial
or other), business, prospects, properties, assets or results of operations of
the Adviser, whether or not arising in the ordinary course of business, or
which, in each case, could have a material adverse effect on the ability of the
Adviser to perform its obligations under this Agreement and the Investment
Management Agreement.
8. Indemnification and Contribution.
(a) The Fund and the Adviser, jointly and severally, agree to
indemnify and hold harmless each of the Underwriters and each person, if any,
who controls the Underwriters within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act from and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation),
joint or several, arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prepricing Prospectus or in
the Registration Statement or the Prospectus or in any amendment or supplement
thereto, 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 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 the Underwriters furnished in writing to the Fund by or
on behalf of the Underwriters expressly for use in connection therewith;
provided, however, that the indemnification contained in this paragraph (a) with
respect to any Prepricing Prospectus shall not inure to the benefit of the
Underwriters (or to the benefit of any person controlling the Underwriters) on
account of any such loss, claim, damage, liability or expense arising from the
sale of the Shares by the Underwriters to any person if a copy of the Prospectus
shall not have been 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 such Prepricing Prospectus was corrected in the Prospectus,
provided that the Fund has delivered the Prospectus to the Underwriters in
requisite quantity on a timely basis to permit such delivery or sending. The
foregoing indemnity agreement shall be in addition to any liability which the
Fund or the Adviser may otherwise have.
(b) If any action, suit or proceeding shall be brought against the
Underwriters or any person controlling any Underwriter in respect of which
indemnity may be sought against the Fund or the Adviser, the Underwriters or
such controlling person shall promptly notify the Fund or the Adviser, and the
Fund or the Adviser shall assume the defense thereof, including the employment
of counsel and payment of all fees and expenses. The Underwriters or any such
13
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 the Underwriters or
such controlling person unless (i) the Fund or the Adviser has agreed in writing
to pay such fees and expenses, (ii) the Fund and the Adviser have failed 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 the
Underwriters or such controlling person and the Fund or the Adviser and the
Underwriters or such controlling person shall have been advised by its counsel
that representation of such indemnified party and the Fund or the 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 and the Adviser shall not have the right to assume the defense of
such action, suit or proceeding on behalf of the Underwriters or such
controlling person). It is understood, however, that the Fund and the 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) at any time for the 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
Representative, and that all such fees and expenses shall be reimbursed as they
are incurred. The Fund and the Adviser shall not be liable for any settlement of
any such action, suit or proceeding effected without its written consent, but if
settled with such written consent, or if there be a final judgment for the
plaintiff in any such action, suit or proceeding, the Fund and the Adviser agree
to indemnify and hold harmless the Underwriters, to the extent provided in the
preceding paragraph, and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
(c) The Underwriters agree, severally and not jointly, to indemnify
and hold harmless the Fund and the Adviser, their directors, any officers who
sign the Registration Statement, and any person who controls the Fund or the
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 and the
Adviser to the Underwriters, but only with respect to information relating to
the Underwriters furnished in writing by or on behalf of the Underwriters
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 or the Adviser, any of
their 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 the Underwriters pursuant to this paragraph (c), the Underwriters shall
have the rights and duties given to the Fund and the Adviser by paragraph (b)
above (except that if the Fund or the Adviser shall have assumed the defense
thereof the Underwriters shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the Underwriters' expense), and the Fund
and the Adviser, their 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.
14
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Fund and the Adviser on the one hand (treated jointly for this purpose as one
person) and the Underwriters on the other hand from the offering of the Shares,
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Fund and the Adviser on the one hand (treated jointly for this purpose as
one person) and the Underwriters on the other in connection with the statements
or omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Fund and the 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 sales load
received by the Underwriters, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Fund and the Adviser on
the one hand (treated jointly for this purpose as one person) and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Fund and the Adviser on the one hand (treated jointly for this
purpose as one person) or by the Underwriters on the other hand and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Fund, the Adviser and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 8 were determined
by a pro rata allocation 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 8, the Underwriters
shall not be required to contribute any amount in excess of the amount by which
the total price of the Shares underwritten by it and distributed to the public
exceeds the amount of any damages which the Underwriters have otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
(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 on claims that are the subject matter
of such action, suit or proceeding.
15
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Fund and the 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 the Underwriters or any person
controlling the Underwriters, the Fund, the Adviser, their directors or
officers, or any person controlling the Fund or the Adviser, (ii) acceptance of
any Shares and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to the Underwriters or any person controlling any
Underwriter, or to the Fund, the Adviser, their directors or officers, or any
person controlling the Fund or the Adviser, shall be entitled to the benefits of
the indemnity, contribution, and reimbursement agreements contained in this
Section 8.
(h) Any indemnification by the Fund shall be subject to the
requirements and limitations of Section 17(i) of the 1940 Act.
9. Conditions of Underwriters' Obligations. The obligation of the
Underwriters to purchase the Shares hereunder are subject to the following
conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, the
Registration Statement or such post-effective amendment shall have become
effective not later than 5:30 P.M., New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by the
Underwriters, 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 those purposes shall have been instituted or, to the knowledge of
the Fund, the Adviser or the Underwriters, 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 the Underwriters' satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change or any development involving a prospective
change in or affecting the condition (financial or other), business, prospects,
properties, net assets, or results of operations of the Fund or the Adviser not
contemplated by the Prospectus, which in the Underwriters' opinion would
materially, adversely affect the market for the Shares, or (ii) any event or
development relating to or involving the Fund or the Adviser or any officer or
director of the Fund or the Adviser which makes any statement 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 or the Rules and Regulations or any other law to be stated therein
or necessary in order to make the statements therein not misleading, if amending
or supplementing the Prospectus to reflect such event or development would, in
the Underwriters' opinion, materially adversely affect the market for the
Shares.
16
(c) The Fund shall have furnished to the Representative as soon as
practicable from the Closing Date a report showing compliance with the asset
coverage requirements of the 1940 Act and a Basic Maintenance Report (as defined
in the Statement), in form and substance satisfactory to the Representative.
(d) ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Fund, shall have
furnished to the Representative on the Closing Date their opinion addressed to
the Underwriters and dated the Closing Date, to the effect that:
(i) The Fund has been duly organized and is validly existing and
in good standing as a business trust under the laws of the
Commonwealth of Massachusetts, with full power and authority to
conduct its business as described in the Registration Statement and
the Prospectus (and any amendments or supplements to either of them),
and is duly registered and qualified to conduct its business and is in
good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration
or qualification;
(ii) All of the outstanding shares of the Fund have been duly
authorized and validly issued, are fully paid and nonassessable and
are free of any preemptive or similar rights, except that, as set
forth in the Registration Statement, shareholders of a Massachusetts
business trust may under certain circumstances be held liable for its
obligations;
(iii) The Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance
with the terms of the Underwriting Agreement, will be validly issued,
fully paid and nonassessable and free of any preemptive or similar
rights, except that, as set forth in the Registration Statement,
shareholders of a Massachusetts business trust may under certain
circumstances be held liable for its obligations. Except as set forth
in the Declaration and the Statement, there are no restrictions upon
the transfer of any Shares pursuant to the Declaration or By-Laws of
the Fund or any agreement or other outstanding instrument known to
such counsel; and the certificate evidencing the Shares complies with
all formal requirements of Massachusetts law;
(iv) The Shares conform in all material respects to the
description thereof in the Registration Statement and the Prospectus
(and any amendment or supplement to either of them) and the shares of
beneficial interest of the Fund (including the MuniPreferred and any
other outstanding series of preferred stock) conforms in all material
respects to the description thereof in the Registration Statement and
the Prospectus (and any amendment or supplement to either of them);
and the authorized and outstanding shares of beneficial interest of
the Fund is as set forth in the Prospectus;
(v) The Registration Statement is effective under the 1933 Act
and the 1940 Act; any required filing of the Prospectus pursuant to
Rule 497 of the Rules and Regulations has been made within the time
periods required by Rule 497; to
17
the best of such counsel's knowledge, no stop-order suspending the
effectiveness of the Registration Statement or order pursuant to
Section 8(e) of the 1940 Act has been issued and no proceeding for any
such purpose has been instituted or is pending or threatened by the
Commission;
(vi) The 1940 Act Notification, the Registration Statement and
the Prospectus and each amendment or supplement to the Registration
Statement and the Prospectus as of their respective dates (except that
no opinion need be expressed as to the financial statements or other
financial data contained therein) complied as to form in all material
respects with the requirements of the 1933 Act, the 1940 Act and the
Rules and Regulations;
(vii) The statements made in the Prospectus under the captions
"The Auction", "Description of MuniPreferred" and "Additional
Information Concerning the Auctions for MuniPreferred", insofar as
they purport to summarize the provisions of the Statement or other
documents or agreements specifically referred to therein, constitute
accurate summaries of the terms of any such documents;
(viii) The statements made in the Prospectus under the caption
"Prospectus Summary-Taxation" and "Tax Matters", insofar as they
constitute matters of law or legal conclusions, have been reviewed by
such counsel and constitute accurate statements of any such matters of
law or legal conclusions, and fairly present the information called
for with respect thereto by Form N-2;
(ix) To the best of such counsel's knowledge, there are no legal
or governmental proceedings pending or 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;
(x) To the best of such counsel's knowledge, there are no
agreements, contracts, indentures, leases or other instruments that
are required to be described in the Registration Statement or the
Prospectus (and 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;
(xi) To the best of such counsel's knowledge, the Fund is not in
violation of its Declaration, Statement or By-Laws, or other
organizational documents of the Fund or of any law, ordinance,
administrative or governmental rule or regulation, of any decree of
the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court or
governmental agency, body or official having jurisdiction over the
Fund, or in default in any material respect in the performance of any
obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness or in any material
agreement, indenture, lease or other instrument to which the Fund is a
party or by which it or any of its properties may be bound;
18
(xii) The Underwriting Agreement and the Fund Agreements have
each been duly and validly authorized, executed and delivered by the
Fund, each complies with all applicable provisions of the 1940 Act 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 under the Underwriting Agreement
and the Fund Agreements may be limited by federal or state securities
laws, subject as to enforcement to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(xiii) The Fund is registered under the 1940 Act as a closed-end
non-diversified management investment company; the provisions of the
Declaration, Statement and By-Laws of the Fund and the investment
policies and restrictions described in the Prospectus comply with the
requirements of the 1940 Act;
(xiv) To the best of such counsel's knowledge, no person is
serving or acting as an officer, director or investment adviser of the
Fund except in accordance with the provisions of the 1940 Act and the
1940 Act Rules and Regulations and the Investment Advisers Act and the
Advisers Act Rules and Regulations.
(xv) Neither the issuance and sale of the Shares, the execution,
delivery or performance of the Underwriting Agreement or any of the
Fund Agreements by the Fund, nor the consummation by the Fund of the
transactions contemplated in the Underwriting Agreement or any of the
Fund Agreements (A) requires any consent, approval, authorization, or
other order of or registration or filing with, the Commission, the
NASD, any state securities commission, any national securities
exchange, any arbitrator, any court, regulatory body, administrative
agency or governmental body, agency or official (except such as may
have been obtained prior to the date hereof and such as may be
required for compliance with the state securities or blue sky laws of
various jurisdictions in accordance with the Underwriting Agreement)
or conflicts or will conflict with or constitutes or will constitute a
breach of, or a default under, the Organizational Documents of the
Fund or (B) 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 violates or will violate any
statute, law, regulation or judgment, injunction, order or decree
applicable to the Fund or any of its properties, or will result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Fund pursuant to the terms of any agreement
or instrument to which it is a party or by which it may be bound or to
which any of its property or assets is subject. The Fund is not
subject to any order of any court or of any arbitrator, governmental
authority or administrative agency;
(xvi) No holder of any security of the Fund has any right to
require registration of shares of common stock, shares of
MuniPreferred or any other security of the Fund because of the filing
of the Registration Statement or
19
consummation of the transactions contemplated by the Underwriting
Agreement; and
(xvii) Such counsel shall also state that they have participated
in conferences with officers and employees of the Fund,
representatives of the independent accountants 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
they 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 (iv), (vi), (vii), (viii) and
(xiii), and have made no independent check or verification thereof,
and on the basis of the foregoing, no facts have come to their
attention that would have led them to believe that the Registration
Statement or any amendment or supplement thereto, 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
that the Prospectus or any amendment or supplement thereto, 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 light of the circumstances under which they were
made, not misleading, except that they express no belief with respect
to the financial statements, schedules and other financial information
and statistical data included therein or excluded therefrom or the
exhibits to the Registration Statement.
Such opinion shall also contain a statement that such counsel has no
reason to believe that the 1940 Act Notification contains any untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading.
In giving such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ may rely on
the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇, LLP as to matters of Massachusetts law, provided
that ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ & Kammholz furnish a copy thereof to the
Underwriters and state that such opinion is satisfactory in substance and form
and that the Underwriters and counsel for the Underwriters are entitled to rely
thereon.
(e) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., Senior Vice President, Secretary and
Assistant General Counsel of the Adviser, shall have furnished to the
Representative on the Closing Date his opinion addressed to the Underwriters and
dated the Closing Date, to the effect that:
(i) The Adviser has been duly organized and is validly existing
and in good standing as a corporation under the laws of the State of
Delaware, with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them), and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction or
20
place where the nature of its properties or the conduct of its
business requires such registration or qualification;
(ii) The Adviser is duly registered and in good standing with the
Commission as an investment adviser under the Advisers Act and is not
prohibited by the Advisers Act, the Advisers Act Rules and
Regulations, the 1940 Act or the 1940 Act Rules and Regulations from
acting under the Investment Management Agreement for the Fund as
contemplated by the Prospectus (or any amendment or supplement
thereto); there does not exist any proceeding or, to the best of such
counsel's knowledge after reasonable investigation, any facts or
circumstances the existence of which could lead to any proceeding
which might adversely affect the registration of the Adviser with the
Commission;
(iii) To the best of such counsel's knowledge, there are no legal
or governmental proceedings pending or threatened against the Adviser,
or to which the Adviser or any of its properties is subject, that are
required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement to either of them), but are
not described as required or that may reasonably be expected to
involve a prospective material adverse change, in the condition
(financial or other), business, prospects, properties, assets or
results of operations of the Adviser or on the ability of the Adviser
to perform its obligations under the Underwriting Agreement and the
Investment Management Agreement;
(iv) To the best of such counsel's knowledge, the Adviser is not
in violation of its corporate charter or by-laws, or other
organizational documents, nor is the Adviser in default under any
agreement, indenture or instrument or in breach or violation of any
judgment, decree, order, rule or regulation of any court or
governmental or self-regulatory agency or body;
(v) The Underwriting Agreement and the Investment Management
Agreement have each been duly and validly authorized, executed and
delivered by the Adviser, each complies with all applicable provisions
of the 1940 Act and the Advisers Act and the 1940 Act Rules and
Regulations and the Advisers Act Rules and Regulations and each
constitutes the valid and legally binding agreement of the Adviser,
enforceable against the Adviser in accordance with its terms, subject
as to enforcement to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles;
(vi) The description of the Adviser in the Registration Statement
and the Prospectus (and any amendment or supplement thereto) complied
and comply in all material respects with the provisions of the 1933
Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the
Advisers Act Rules and Regulations and did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
21
(vii) Except as disclosed in the Registration Statement and 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 (or any
amendment or supplement to either of them), the Adviser has not
incurred any liability or obligation, direct or contingent, or entered
into any transaction, not in the ordinary course of business, that is
material to the Adviser or the Fund and that is required to be
disclosed in the Registration Statement or the Prospectus and there
has not been any material adverse change, or any development involving
or which may reasonably be expected to involve, a prospective material
adverse change, in the condition (financial or other), business,
prospects, properties, assets or results of operations of the Adviser,
whether or not arising in the ordinary course of business, or which,
in each case, could have a material adverse effect on the ability of
the Adviser to perform its obligations under the Underwriting
Agreement and the Investment Management Agreement; and
(viii) Neither the execution, delivery or performance of the
Underwriting Agreement or the Investment Management Agreement by the
Adviser, nor the consummation by the Adviser of the transactions
contemplated in the Underwriting Agreement or the Investment
Management Agreement (A) requires the Adviser to obtain any consent,
approval, authorization or other order of or registration or filing
with, the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court, regulatory
body, administrative agency or other governmental body, agency or
official (except such as may have been obtained prior to the date
hereof and such as may be required for compliance with the state
securities or blue sky laws of various jurisdictions in accordance
with the Underwriting Agreement) or conflicts or will conflict with or
constitutes or will constitute a breach of or a default under, the
corporate charter or by-laws, or other organizational documents, of
the Adviser or (B) conflicts or will conflict with or constitutes or
will constitute a breach of or a default under, any agreement,
indenture, lease or other instrument to which the Adviser is a party
or by which it or any of its properties may be bound, or violates or
will violate any statute, law, regulation or filing or judgment,
injunction, order or decree applicable to the Adviser or any of its
properties or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Adviser
pursuant to the terms of any agreement or instrument to which 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. The Adviser is not subject to any
order of any court or of any arbitrator, governmental authority or
administrative agency.
(f) The Representative shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated the
Closing Date and addressed to the Underwriters, with respect to such matters as
the Underwriters may reasonably request.
(g) The Fund shall have furnished to the Representative on the Closing
Date a certificate, dated the Closing Date, of its President or a Vice President
and its Controller or Treasurer stating that:
22
(i) The representations, warranties and agreements of the Fund in
Section 6 hereof are true and correct as of the Closing Date; the Fund
has complied with all its agreements contained herein; and the
conditions set forth in Section 9(a) have been fulfilled; and
(ii) They have carefully examined the Registration Statement and
the Prospectus and, in their opinion, (A) as of the date of its
effectiveness (or the most recent post-effective amendment thereto),
the Registration Statement did not include any untrue statement of a
material fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading and on such Closing Date, the Prospectus did not include
any untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, and (B) since the date of effectiveness of
the Registration Statement (or the most recent post-effective
amendment thereto), no event has occurred which should have been set
forth in a supplement to or amendment of the Prospectus which has not
been set forth in such a supplement or amendment.
(h) The Adviser shall have furnished to the Representative on the
Closing Date a certificate, dated the Closing Date, of its Chairman of the
Board, President or a Vice President and its Controller or Treasurer stating
that:
(i) The representations, warranties and agreements of the Adviser
in Sections 6 and 7 hereof are true and correct as of such Closing
Date and the Adviser has complied with all its agreements contained
herein; and
(ii) They have carefully examined the Registration Statement and
the Prospectus and, in their opinion, (A) as of the date of its
effectiveness (or the most recent post-effective amendment thereto),
the Registration Statement did not include any untrue statement of a
material fact and did not omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading and on such Closing Date, the Prospectus did not include
any untrue statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, and (B) since the date of its
effectiveness, (or the most recent post-effective amendment thereto)
the Registration Statement, no event has occurred which should have
been set forth in a supplement to or amendment of the Prospectus which
has not been set forth in such a supplement or amendment.
(i) The Representative shall have received letters addressed to the
Underwriters, and dated the date hereof and the Closing Date from Ernst & Young
LLP, independent certified public accountants, substantially in the forms
heretofore approved by the Representative.
(j) Subsequent to the date of effectiveness of the Registration
Statement (or the most recent post-effective amendment thereto), there shall not
have occurred any change, or any development involving a prospective change, in
or affecting particularly the business or financial
23
affairs of the Fund or the Adviser which, in the opinion of the Underwriters,
would materially and adversely affect the market for the Shares.
(k) (i) No order suspending the effectiveness of the Registration
Statement or prohibiting or suspending the use of the Prospectus (or any
amendment or supplement thereto) or any Prepricing Prospectus or any sales
material shall have been issued and no proceedings for such purpose or for the
purpose of commencing an enforcement action against the Fund, the Adviser or,
with respect to the transactions contemplated by the Prospectus (or any
amendment or supplement thereto) and this Agreement, the Underwriters, may be
pending before or, to the knowledge of the Fund, the Adviser or the Underwriters
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 Underwriters; (ii) there shall not have been any change
in the shares of beneficial interest of the Fund nor any material increase in
the short-term or long-term debt of the Fund (other than in the ordinary course
of business) from that set forth or contemplated in the Registration Statement
or the Prospectus (or any amendment or supplement thereto); (iii) there shall
not have been, subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus (or any amendment or
supplement thereto), except as may otherwise be stated in the Registration
Statement and Prospectus (or any amendment or supplement thereto), any material
adverse change in the condition (financial or other), business, prospects,
properties, net assets or results of operations of the Fund or the Adviser; (iv)
the Fund shall not have any liabilities or obligations, direct or contingent
(whether or not in the ordinary course of business), that are material to the
Fund, other than those reflected in the Registration Statement or the Prospectus
(or any amendment or supplement to either of them); and (v) all the
representations and warranties of the Fund and the Adviser contained in this
Agreement shall be true and correct on and as of the date hereof and on and as
of the Closing Date as if made on and as of the Closing Date.
(l) Neither the Fund nor the Adviser shall have failed at or prior to
the Closing Date to have performed or complied in all material respects with any
of its agreements herein contained and required to be performed or complied with
by it hereunder at or prior to the Closing Date.
(m) The Fund shall have delivered and the Underwriters shall have
received evidence satisfactory to the Representative that the shares of
MuniPreferred are rated `Aaa' by ▇▇▇▇▇'▇ and AAA by S&P as of the Closing Date,
and there shall not have been given any notice of any intended or potential
downgrading, or of any review for a potential downgrading, in the rating
accorded to any outstanding shares of beneficial interest of the Fund by any
Rating Agency.
(n) The Fund and the Adviser shall have furnished or caused to be
furnished to the Underwriters such further certificates and documents as the
Representative shall have reasonably requested.
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 the Representative and the Underwriters' counsel.
24
Any certificate or document signed by any officer of the Fund or the
Adviser and delivered to the Underwriters, or to counsel for the Underwriters,
shall be deemed a representation and warranty by the Fund or the Adviser to the
Underwriters as to the statements made therein.
10. Expenses. The Fund agrees to pay the costs incident to the
authorization, issuance, sale and delivery of the Shares to be sold by the Fund
to the Underwriters and any taxes payable in that connection; the costs incident
to the preparation, printing and filing under the 1933 Act and 1940 Act of the
Registration Statement and any amendments and exhibits thereto; the costs of
preparing, printing and distributing the Registration Statement as originally
filed and each amendment and any post-effective amendment thereto (including
exhibits), any Prepricing Prospectus, the Prospectus and any amendment or
supplement to the Prospectus; the costs of printing this Agreement and
distributing the terms of agreements relating to the organization of any
underwriting syndicate by mail, telex or other means of communication; the fees
paid to Rating Agencies in connection with the rating of the Shares; the fees
and expenses of qualifying the Shares under the securities laws of the several
jurisdictions as provided in this Section and of preparing and printing a blue
sky survey (including related fees and expenses of counsel to the Underwriters);
the fees and expenses of the Auction Agent as set forth in the Auction Agency
Agreement; and all other costs and expenses incident to the performance of the
obligations of the Fund under this Agreement; provided that (i) the Fund, the
Adviser and each Underwriter shall pay its own costs and expenses in attending
any information meeting relating to the Fund, (ii) each Underwriter shall pay
the costs and expenses of any sales material prepared by it in connection with
the public offering of the Shares, (iii) the Underwriters shall pay the costs
and expenses of any "tombstone" advertisements, and (iv) except as provided in
this Section and in Section 5 hereof, the Underwriters shall pay their own costs
and expenses, including the fees and expenses of their counsel and any transfer
taxes on the Shares which they may sell.
If notice shall have been given pursuant to Paragraph 12 terminating
the Underwriters' obligations hereunder, or if the sale of the Shares provided
for herein is not consummated because of any failure, refusal or inability on
the part of the Fund or Adviser to perform any agreement on its part to be
performed or if the Underwriters shall decline to purchase the Shares for any
reason permitted under this Agreement, the Fund shall reimburse the Underwriters
for the fees and expenses of their counsel and for such other out-of-pocket
expenses as shall have been incurred by them in connection with this Agreement
and the proposed purchase of the Shares, and upon demand the Fund shall pay the
full amount thereof to the Underwriters; it being understood that the Fund shall
not in any event be liable to any of the Underwriters for damages on account of
loss of anticipated profits from the sale by them of the Shares. If the Fund
fails to reimburse the Underwriters for such fees and expenses, the Adviser
shall upon demand, pay the full amount thereof to the Underwriters.
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
notification of the effectiveness of the Registration Statement or such
post-effective amendment has been released by the Commission. Until such time as
this Agreement shall have
25
become effective, it may be terminated by the Fund, by notifying the
Underwriters, or by the Underwriters, by notifying the Fund.
If either of the Underwriters shall fail or refuse to purchase Shares
which it is obligated to purchase hereunder on the Closing Date, and the
aggregate number of Shares which such defaulting Underwriter is obligated but
fails or refuses to purchase is not more than one-tenth of the aggregate number
of Shares which the Underwriters are obligated to purchase on the Closing Date,
the non-defaulting Underwriter shall be obligated to purchase the Shares which
such defaulting Underwriter is obligated, but fails or refuses, to purchase. If
either of the Underwriters shall fail or refuse to purchase Shares which it is
obligated to purchase on the Closing Date and the number of Shares with respect
to which such default occurs is more than one-tenth of the aggregate number of
Shares which the Underwriters are obligated to purchase on the Closing Date and
arrangements satisfactory to the Representative and the Fund for the purchase of
such Shares by the non-defaulting Underwriter 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 the non-defaulting
Underwriter or the Fund. In any such case which does not result in termination
of this Agreement, either the Representative 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 the defaulting Underwriter from
liability in respect of 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 is obligated, but fails or refuses, to purchase.
Any notice under this Section 11 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
12. Termination of Agreement. This Agreement shall be subject to
termination in the Representative's absolute discretion, without liability on
the part of the Underwriters to the Fund or the Adviser, by notice to the Fund
or the Adviser, if prior to the Closing Date (i) trading in securities generally
on the New York Stock Exchange, the American Stock Exchange or the Nasdaq
National Market shall have been suspended or materially limited, (ii) a general
moratorium on commercial banking activities in New York shall have been declared
by either federal or state authorities, or (iii) there shall have occurred any
outbreak or escalation of hostilities or other international or domestic
calamity, crisis or change in political, financial or economic conditions, the
effect of which on the financial markets of the United States is to make it, in
the Representative's 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 by telegram, telecopy or telephone and shall be subsequently confirmed
by letter.
13. Information Furnished by the Underwriters. The statements set
forth in the last paragraph of the cover page and the first and third paragraphs
under the caption "Underwriting" in any Prepricing Prospectus and in the
Prospectus, constitute the only
26
information furnished by or on behalf of the Underwriters as such information is
referred to in Sections 6(b) and 8 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 (i) if to the Fund or the Adviser, at the office
of the Fund at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Vice President and Secretary; or (ii) if to the Underwriters, to
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of the
Underwriters, the Fund, the Adviser, their directors and officers, and the other
controlling persons referred to in Section 8 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from the Underwriters of any of the Shares in his
status as such purchaser.
15. Applicable Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
16. Limitation of Liability. Consistent with the Fund's Declaration,
notice is hereby given and the parties hereto agree that this instrument is
executed on behalf of the Trustees of the Fund as Trustees and not individually
and that the obligations of this instrument are not binding on any of the
Trustees or shareholders of the Fund individually but are binding only upon the
assets and property of the Fund.
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.
[End of Text]
Please confirm that the foregoing correctly sets forth the agreement
among the Fund, the Adviser and the Underwriters.
Very truly yours,
NUVEEN DIVIDEND ADVANTAGE MUNICIPAL FUND 3
By:
------------------------------------
Name:
Title:
NUVEEN ADVISORY CORP.
By:
------------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:
------------------------------
Name:
Title:
For itself and the other Underwriters
named in Schedule I to the foregoing
Agreement
SCHEDULE I
NUVEEN DIVIDEND ADVANTAGE MUNICIPAL FUND 3
Number of
Underwriters Shares
------------ ------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc....................................... [ ]
[ ]....................................... [ ]
Total..........................................................
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