First Trust Global Credit Strategies Fund
(a Massachusetts business trust)
[___________] Common Shares of Beneficial Interest
(Par Value $0.01 Per Share)
PURCHASE AGREEMENT
December [o], 2009
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
[Other Co-Managers]
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Each of First Trust Global Credit Strategies Fund, a Massachusetts business
trust (the "Fund"), its investment adviser, First Trust Advisors L.P., an
Illinois limited partnership (the "Investment Adviser" or "First Trust") and its
investment sub-adviser, Halbis Capital Management (UK) Ltd., a company
incorporated under the laws of the United Kingdom (the "Sub-Adviser" or
"Halbis") (each, an "Adviser" and together, the "Advisers"), confirms its
agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx"), [other co-managers] and each of the other
Underwriters named in Schedule A hereto (collectively, the "Underwriters," which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom Xxxxxxx Xxxxx, [other co-managers] are acting as
representatives (in such capacity, the "Representatives"), with respect to the
issue and sale by the Fund and the purchase by the Underwriters, acting
severally and not jointly, of the respective number of common shares of
beneficial interest, par value $0.01 per share, of the Fund ("Common Shares")
set forth in said Schedule A, and with respect to the grant by the Fund to the
Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of [_______] additional Common
Shares for the sole purpose of covering overallotments, if any. The aforesaid
[________] Common Shares (the "Initial Securities") to be purchased by the
Underwriters and all or any part of the [________] Common Shares subject to the
option described in Section 2(b) hereof (the "Option Securities") are
hereinafter called, collectively, the "Securities."
The Fund understands that the Underwriters propose to make a public offering of
the Securities as soon as the Representatives deem advisable after this
Agreement has been executed and delivered.
The Fund has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form N-2 (No. 333-160788 and No.
811-22315) covering the registration of the Securities under the Securities Act
AMR-223237-v5 1 80-20710670
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses, and a notification on Form N-8A of registration of
the Fund as an investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"), and the rules and regulations of the Commission under
the 1933 Act and the 1940 Act (the "Rules and Regulations"). Promptly after
execution and delivery of this Agreement, the Fund will prepare and file a
prospectus in accordance with the provisions of Rule 430A ("Rule 430A") of the
Rules and Regulations and paragraph (c) or (h) of Rule 497 ("Rule 497") of the
Rules and Regulations. The information included in any such prospectus that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted the Rule 430A Information, that was
used after such effectiveness and prior to the execution and delivery of this
Agreement, including in each case any statement of additional information
incorporated therein by reference, is herein called a "preliminary prospectus."
Such registration statement, including the exhibits thereto and schedules
thereto at the time it became effective and including the Rule 430A Information
is herein called the "Registration Statement." Any registration statement filed
pursuant to Rule 462(b) of the Rules and Regulations is herein referred to as
the "Rule 462(b) Registration Statement," and after such filing the term
"Registration Statement" shall include the Rule 462(b) Registration Statement.
The final prospectus in the form first furnished to the Underwriters for use in
connection with the offering of the Securities, including the statement of
additional information incorporated therein by reference, is herein called the
"Prospectus." For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules and other
information which is "contained," "included" or "stated" in the Registration
Statement, any preliminary prospectus or the Prospectus (or other references of
like import) shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by reference in the
Registration Statement, any preliminary prospectus or the Prospectus, as the
case may be.
1. Representations and Warranties.
(a) Representations and Warranties by the Fund and the Advisers. The Fund and
the Advisers jointly and severally represent and warrant to each Underwriter as
of the date hereof, as of the Applicable Time referred to in Section 1(a)(i)
hereof and as of the Closing Time referred to in Section 2(c) hereof, will
jointly and severally represent and warrant to each Underwriter as of each Date
of Delivery (if any) referred to in Section 2(b) hereof, and agree with each
Underwriter, as follows:
(i) Compliance with Registration Requirements. Each of the Registration
Statement and any Rule 462(b) Registration Statement has become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
AMR-223237-v5 2 80-20710670
1933 Act, or order of suspension or revocation of registration pursuant to
Section 8(e) of the 1940 Act, and no proceedings for any such purpose have been
instituted or are pending or, to the knowledge of the Fund or the Advisers, are
contemplated by the Commission, and any request on the part of the Commission
for additional information has been complied with in all material respects.
At the respective times the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto became effective and at the
Closing Time, the Registration Statement, the Rule 462(b) Registration
Statement, the notification on Form N-8A and any amendments and supplements
thereto complied and will comply in all material respects with the requirements
of the 1933 Act, the 1940 Act and the Rules and Regulations and did not and will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement was
issued and at the Closing Time (and, if any Option Securities are purchased, at
the Date of Delivery), included or will include any untrue statement of a
material fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
As of the Applicable Time (as defined below), the Rule 482 Statement (as defined
below) issued at or prior to the Applicable Time, if any, the Statutory
Prospectus (as defined below) and the information included on Schedule C hereto,
all considered together (collectively, the "General Disclosure Package"), did
not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
"Applicable Time" means 7:00 a.m., Eastern time, on December [o], 2009 or such
other time as agreed to by the Fund and Xxxxxxx Xxxxx.
"Rule 482 Statement" means the document, attached as Schedule D hereto, that may
contain the number of Securities issued, the offering price and any other items
dependent upon the offering price and/or certain other information, prepared in
accordance with the provisions of Rule 482 of the 1933 Act.
"Statutory Prospectus" as of any time means the prospectus relating to the
Securities that is included in the Registration Statement immediately prior to
that time, including any document incorporated by reference therein.
Each preliminary prospectus delivered to the Underwriters for use in connection
with this offering and the prospectus filed as part of the effective
Registration Statement or as part of any amendment thereto, or filed pursuant to
Rule 497 under the 1933 Act, complied when so filed in all material respects
with the Rules and Regulations and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with this
AMR-223237-v5 3 80-20710670
offering was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S T.
If a Rule 462(b) Registration Statement is required in connection with the
offering and sale of the Securities, the Fund has complied or will comply with
the requirements of Rule 111 under the 1933 Act Regulations relating to the
payment of filing fees thereof.
The foregoing representations in this Section 1(a)(i) do not apply to statements
or omissions relating to the Underwriters made in reliance on and in conformity
with information furnished in writing to the Fund by or on behalf of the
Underwriters or their agents expressly for use in the Registration Statement,
the 462(b) Registration Statement, the Prospectus or the preliminary prospectus
(or any amendment or supplement to any of the foregoing), or the descriptions of
each of the Advisers (referred to in Sections (1)(b)(iii) and 1(c)(iii) of this
Agreement) contained in the foregoing.
(ii) Independent Registered Public Accounting Firm. As of the date of the report
of the independent registered public accounting firm contained in the
Registration Statement, the independent registered public accounting firm who
certified the statement of assets and liabilities included in the Registration
Statement is an independent registered public accounting firm as required by the
1933 Act, the 1940 Act and the Rules and Regulations.
(iii) Financial Statements. The statement of assets and liabilities included in
the Registration Statement, the General Disclosure Package and the Prospectus,
together with the related notes, presents fairly in all material respects the
financial position of the Fund at the date indicated; said statement has been
prepared in conformity with U.S. generally accepted accounting principles
("GAAP").
(iv) Expense Summary. The information set forth in the Prospectus in the fee
table contained in the section of the Prospectus entitled "Summary of Fund
Expenses" has been prepared in accordance with the requirements of Form N-2 and
to the extent estimated or projected, such estimates or projections are
reasonably believed to be attainable and reasonably based.
(v) No Material Adverse Change. Since the respective dates as of which
information is given in the Registration Statement, the General Disclosure
Package and the Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the financial condition, earnings or business
affairs of the Fund, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions entered into
by the Fund, other than those in the ordinary course of business, which are
material with respect to the Fund, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Fund on any class of its
capital shares.
(vi) Good Standing of the Fund. The Fund has been duly organized and is validly
existing as a business trust in good standing under the laws of The Commonwealth
of Massachusetts and has power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement; and the Fund is
duly qualified to transact business and is in good standing in each other
AMR-223237-v5 4 80-20710670
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not be expected to result
in a Material Adverse Effect.
(vii) No Subsidiaries. The Fund has no subsidiaries.
(viii) Investment Company Status. The Fund is duly registered with the
Commission under the 1940 Act as a closed-end diversified management investment
company, and no order of suspension or revocation of such registration has been
issued or proceedings therefor initiated or, to the knowledge of the Fund or any
Adviser, threatened by the Commission. The Fund is, and at all times through the
completion of the transactions contemplated hereby, will be in compliance with
the provisions of the 1933 Act and the 1940 Act.
(ix) Officers and Trustees. No person is serving or acting as an officer,
trustee or investment adviser of the Fund except in accordance with the
provisions of the 1940 Act and the Rules and Regulations and the 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"). Except as disclosed in the Registration Statement
and the Prospectus (or any amendment or supplement to either of them), no
trustee of the Fund is (A) an "interested person" (as defined in the 0000 Xxx)
of the Fund or (B) an "affiliated person" (as defined in the 0000 Xxx) of any
Underwriter.
(x) Capitalization. The authorized, issued and outstanding shares of beneficial
interest of the Fund are as set forth in the Prospectus. All issued and
outstanding common shares of beneficial interest of the Fund have been duly
authorized and validly issued and are fully paid and non-assessable and have
been offered and sold or exchanged by the Fund in compliance with all applicable
laws (including, without limitation, federal and state securities laws); none of
the outstanding common shares of beneficial interest of the Fund was issued in
violation of the preemptive or other similar rights of any securityholder of the
Fund.
(xi) Authorization and Description of Securities. The Securities to be purchased
by the Underwriters from the Fund have been duly authorized for issuance and
sale to the Underwriters pursuant to this Agreement and, when issued and
delivered by the Fund pursuant to this Agreement when paid for by the
Underwriters, will be validly issued and fully paid and non-assessable. In all
material respects, the Common Shares conform to all statements relating thereto
contained in the Prospectus and such statements conform to the rights set forth
in the instruments defining the same, to the extent such rights are set forth;
no holder of the Securities will be subject to personal liability by reason of
being such a holder; and the issuance of the Securities is not subject to
preemptive or other similar rights of any securityholder of the Fund.
(xii) Absence of Defaults and Conflicts. The Fund is not in violation of its
declaration of trust or by-laws, each as amended from time to time, or in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or other agreement or instrument to which it is
a party or by which it may be bound, or to which any of the property or assets
of the Fund is subject (collectively, "Agreements and Instruments") except for
AMR-223237-v5 5 80-20710670
such violations or defaults that would not result in a Material Adverse Effect;
and the execution, delivery and performance of this Agreement, the Investment
Management Agreement dated as of [________], 2009, the Sub-Advisory Agreement
dated as of [________], 2009, the Administration and Accounting Services
Agreement dated as of [________], 2009, the Custodian Services Agreement dated
as of [________], 2009 and the Transfer Agency Services Agreement dated as of
[________], 2009 referred to in the Registration Statement (as used herein, the
"Management Agreement," the "Sub-Advisory Agreement," the "Administration
Agreement," the "Custodian Agreement" and the "Transfer Agency Agreement,"
respectively) and any other material agreements and the consummation of the
transactions contemplated herein and in the Registration Statement (including
the issuance and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the Prospectus under the caption "Use of
Proceeds") and compliance by the Fund with its obligations hereunder have been
duly authorized by all necessary Fund actions and do not and will not, whether
with or without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Fund pursuant to, the Agreements
and Instruments (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse Effect), nor
will such action result in any violation of the provisions of the declaration of
trust or by-laws of the Fund, each as amended from time to time, or any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Fund or any of its assets, properties or operations,
except for such violations that would not have a Material Adverse Effect. As
used herein, a "Repayment Event" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Fund.
(xiii) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Fund or any
Adviser, threatened, against or affecting the Fund, which is required to be
disclosed in the Registration Statement (other than as disclosed therein), or
which would reasonably be expected to result in a Material Adverse Effect, or
which would prohibit or materially delay the consummation of the transactions
contemplated in this Agreement or the performance by the Fund of its obligations
hereunder. The aggregate of all pending legal or governmental proceedings to
which the Fund is a party or of which any of its property or assets is the
subject which are not described in the Registration Statement, the Prospectus or
the General Disclosure Package, including ordinary routine litigation incidental
to the Fund's business, could not reasonably be expected to result in a Material
Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits thereto by the 1933 Act, the 1940 Act or by the Rules and
Regulations which have not been so described and filed as required.
(xv) Possession of Intellectual Property. The Fund owns or possesses, or can
acquire on reasonable terms, or otherwise has rights to, adequate patents,
patent rights, licenses, inventions, copyrights, know-how (including trade
AMR-223237-v5 6 80-20710670
secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, trade names or
other intellectual property (collectively, "Intellectual Property") necessary to
carry on the business now operated by the Fund, and the Fund has not received
any notice or is not otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or of any
facts or circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Fund therein, and which infringement
or conflict (if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency is or will be necessary or required
for the performance by the Fund of its obligations hereunder, in connection with
the offering, issuance or sale of the Securities hereunder or the consummation
of the transactions contemplated by this Agreement, except such as have been
already obtained, or with respect to which the failure to so obtain would not
have a Material Adverse Effect, or as may be required under the 1933 Act, the
1940 Act, the Securities Exchange Act of 1934, as amended (the "1934 Act"), the
New York Stock Exchange ("NYSE"), state securities laws or the filing
requirements of the Financial Industry Regulatory Authority ("FINRA").
(xvii) Possession of Licenses and Permits. The Fund possesses such permits,
licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to operate its properties and to
conduct the business as contemplated in the Prospectus; the Fund is in
compliance with the terms and conditions of all such Governmental Licenses; all
of the Governmental Licenses are valid and in full force and effect; and the
Fund has not received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(xviii) Advertisements. Any advertising, sales literature or other promotional
material (including "prospectus wrappers," "broker kits," "road show slides,"
"road show scripts," and "electronic road show presentations") authorized in
writing by or prepared by the Fund or the Advisers used in connection with the
public offering of the Securities (collectively, "Sales Material") does 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 in which they were made, not misleading. All sales
material complied and will comply in all material respects with the applicable
requirements of the 1933 Act, the 1940 Act, the Rules and Regulations and the
rules and interpretations of FINRA.
(xix) Insurance. The Fund is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which it is engaged and which the Fund deems
adequate; all policies of insurance insuring the Fund or its business, assets,
employees, officers and trustees, including the Fund's trustees and officers
errors and omissions insurance policy and its fidelity bond required by Rule
17g-1 of the Rules and Regulations, are in full force and effect; the Fund is in
AMR-223237-v5 7 80-20710670
compliance with the terms of such policy and fidelity bond in all material
respects; and there are no claims by the Fund under any such policy or fidelity
bond as to which any insurance company is denying liability or defending under a
reservation of rights clause; the Fund has not been refused any insurance
coverage sought or applied for; and the Fund has no reason to believe that it
will not be able to renew its existing insurance coverage and fidelity bond as
and when such coverage and fidelity bond expires or to obtain similar coverage
and fidelity bond from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect on the Fund,
whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Registration Statement, any
preliminary prospectus and the Prospectus (exclusive of any supplement thereto).
(xx) Material Lending or Other Relationship. Except as disclosed in the
Registration Statement, each preliminary prospectus and the Prospectus, the Fund
(i) does not have any material lending or other relationship with any bank or
lending affiliate of Xxxxxxx Xxxxx and (ii) does not intend to use any of the
proceeds from the sale of the Securities hereunder to repay any outstanding debt
owed to any affiliate of Xxxxxxx Xxxxx.
(xxi) Subchapter M. The Fund intends to direct the investment of the proceeds of
the offering described in the Registration Statement in such a manner as to
comply with the requirements of Subchapter M of the Internal Revenue Code of
1986, as amended ("Subchapter M of the Code" and the "Code," respectively), and
intends to qualify as a regulated investment company under Subchapter M of the
Code.
(xxii) Money Laundering Laws. The operations of the Fund are and have been
conducted at all times in compliance with applicable financial recordkeeping and
reporting requirements and the money laundering statutes and the rules and
regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency
(collectively, the "Money Laundering Laws") and no action, suit or proceeding by
or before any court or governmental agency, authority or body or any arbitrator
involving the Fund with respect to the Money Laundering Laws is pending or
threatened.
(xxiii) Xxxxxxxx-Xxxxx Act of 2002. There is and has been no failure on the part
of the Fund or any of the Fund's trustees or officers, in their capacities as
such, to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations promulgated in connection therewith (the "Xxxxxxxx-Xxxxx
Act") applicable to them.
(xxiv) Rule 38a-1. The Fund has adopted and implemented written policies and
procedures reasonably designed to prevent violation of the federal securities
laws (as that term is defined in Rule 38a-1 under the 0000 Xxx) by the Fund,
including policies and procedures that provide oversight of compliance by the
Investment Adviser, administrator and transfer agent of the Fund.
(xxv) Distribution of Offering Materials. The Fund has not distributed and,
prior to the later to occur of (A) the Closing Time and (B) completion of the
distribution of the Common Shares, will not distribute any offering material in
connection with the offering and sale of the Common Shares other than the
Registration Statement, a preliminary prospectus, the Prospectus, the Statutory
Prospectus, the Rule 482 Statement, if any, or the Sales Materials; provided,
AMR-223237-v5 8 80-20710670
however, that in no event shall this provision be applicable with respect to any
offering material distributed by any Underwriter without the consent of the Fund
or either Adviser.
(xxvi) Accounting Controls. The Fund maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific authorization and
with the applicable requirements of the 1940 Act, the Rules and Regulations and
the Code; (B) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain accountability for
assets and to maintain compliance with the books and records requirements under
the 1940 Act and the Rules and Regulations; (C) access to assets is permitted
only in accordance with the management's general or specific authorization; and
(D) the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xxvii) Foreign Corrupt Practices Act of 1977. Neither the Fund nor any trustee,
officer, agent, employee or affiliate of the Fund is aware of or has taken any
action in connection with the Fund, directly or indirectly, that would result in
a violation by such persons of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder ("FCPA"), including, without
limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to
pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any
"foreign official" (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA, and the Fund, and to the knowledge of the
Fund, its affiliates have conducted their businesses in compliance with the FCPA
and have instituted and maintain policies and procedures designed to ensure, and
which are reasonably expected to continue to ensure, continued compliance
therewith.
(xxviii) OFAC. Neither the Fund nor any trustee, officer, agent, employee or
affiliate of the Fund is currently subject to any U.S. sanctions administered by
the Office of Foreign Assets Control of the U.S. Treasury Department ("OFAC");
and the Fund will not directly or indirectly use the proceeds of the offering
contemplated by this Agreement, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other person or
entity, for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
(xxix) Absence of Undisclosed Payments. To the Fund's knowledge, neither the
Fund nor any employee or agent of the Fund has made any payment of funds of the
Fund or received or retained any funds, which payment, receipt or retention of
funds is of a character required to be disclosed in the Prospectus (except as
disclosed therein).
(xxx) Material Agreements. This Agreement, the Management Agreement, the
Sub-Advisory Agreement, the Administration Agreement, the Custodian Agreement
and the Transfer Agency Agreement have each been duly authorized by all
requisite action on the part of the Fund, executed and delivered by the Fund, as
of the dates noted therein and each complies with all applicable provisions of
the 1940 Act in all material respects. Assuming due authorization, execution and
AMR-223237-v5 9 80-20710670
delivery by the other parties thereto, each such agreement constitutes a valid
and binding agreement of the Fund, enforceable against the Fund in accordance
with its terms, except as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws and public policy and except as
enforcement may be limited by equitable principles or by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights and remedies
generally (whether considered in a proceeding in equity or at law).
(xxxi) Registration Rights. There are no persons with registration rights or
other similar rights to have any securities of the Fund registered pursuant to
the Registration Statement or otherwise registered by the Fund under the 1933
Act.
(xxxii) New York Stock Exchange Listing. The Securities have been duly
authorized for listing, upon notice of issuance, on the NYSE and the Fund's
registration statement on Form 8-A under the 1934 Act has become effective.
(b) Representations and Warranties by the Advisers. Each Adviser represents and
warrants to each Underwriter, as of the date hereof, as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of Delivery (if any)
referred to in Section 2(b) hereof as follows with respect to itself:
(i) Good Standing of the Adviser. Such Adviser has been duly organized and is
validly existing and in good standing as a limited partnership or limited
company, as the case may be, under the laws of the state of Illinois or the laws
of the United Kingdom, as the case may be, with full limited partnership power
or limited company power, as the case may be, and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good standing in
each other jurisdiction in which such qualification is required, except where
failure to so qualify or to be in good standing would not result in a material
adverse effect.
(ii) Adviser's Status. Such 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 or the 1940 Act, or the rules and regulations
under such acts, from acting under the Management Agreement for the Fund as
contemplated by the Prospectus.
(iii) Descriptions of the Adviser. The descriptions of such Adviser in the
Registration Statement and the Prospectus (and any amendment or supplement to
either of them) complied and comply in all material respects with the provisions
of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and
the Advisers Act Rules and Regulations and are true and correct and do not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(iv) Capitalization. Such Adviser has the financial resources available to it
necessary for the performance of its services and obligations as contemplated in
the Prospectus, the General Disclosure Package, this Agreement and under the
Management Agreement, the Sub-Advisory Agreement and the Additional Compensation
AMR-223237-v5 10 80-20710670
Agreement between First Trust and Xxxxxxx Xxxxx dated December [o], 2009 (the
"Additional Compensation Agreement") [other additional compensation agreements,
if applicable].
(v) Authorization of Agreements; Absence of Defaults and Conflicts. This
Agreement, the Management Agreement, the Sub-Advisory Agreement, the Additional
Compensation Agreement [and the Structuring Fee Agreement] to which it is a
party have each been duly authorized, executed and delivered by such Adviser
and, assuming due authorization, execution and delivery by the other parties
thereto, each agreement constitutes a valid and binding obligation of such
Adviser, enforceable in accordance with its respective terms, except as rights
to indemnity and contribution hereunder may be limited by federal or state
securities laws and public policy and except as affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law); and neither
the execution and delivery of this Agreement, the Management Agreement, the
Sub-Advisory Agreement, the Additional Compensation Agreement [and the
Structuring Fee Agreement] nor the performance by such Adviser of its
obligations hereunder or thereunder to which it is a party will conflict with,
or result in a breach of any of the terms and provisions of, or constitute, with
or without the giving of notice or lapse of time or both, a default under, any
agreement or instrument to which such Adviser is a party or by which it is
bound, the organizational documents of such Adviser, or to such Adviser's
knowledge, by any law, order, decree, rule or regulation applicable to it of any
jurisdiction, court, federal or state regulatory body, administrative agency or
other governmental body, stock exchange or securities association having
jurisdiction over the Adviser or its properties or operations; and no consent,
approval, authorization or order of any court or governmental authority or
agency is required for the consummation by such Adviser of the transactions
contemplated by this Agreement, the Management Agreement, the Sub-Advisory
Agreement, the Additional Compensation Agreement [or the Structuring Fee
Agreement] to which it is a party, except as have been obtained or may be
required under the 1933 Act, the 1940 Act, the 1934 Act or state securities
laws.
(vi) No Material Adverse Change. Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has not occurred any event which should
reasonably be expected to have a material adverse effect on the ability of such
Adviser to perform its obligations under this Agreement, the Management
Agreement, the Sub-Advisory Agreement, the Additional Compensation Agreement
[and the Structuring Fee Agreement] to which it is a party.
(vii) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of such Adviser,
threatened against or affecting such Adviser or any "affiliated person" (as such
term is defined in the 0000 Xxx) of such Adviser or any partners, directors,
officers or employees of the foregoing, whether or not arising in the ordinary
course of business, which might reasonably be expected to result in any material
adverse change in the financial condition or earnings, business affairs or
business prospects of such Adviser, materially and adversely affect the
properties or assets of such Adviser or materially impair or adversely affect
the ability of such Adviser to function as an investment adviser or perform its
AMR-223237-v5 11 80-20710670
obligations under the Management Agreement, the Sub-Advisory Agreement, the
Additional Compensation Agreement [and the Structuring Fee Agreement] to which
it is a party, or which is required to be disclosed in the Registration
Statement and the Prospectus.
(viii) Absence of Violation or Default. Such Adviser is not in violation of its
organizational documents or in default under any agreement, indenture or
instrument, where such violation or default would reasonably be expected to have
a material adverse effect on the ability of such Adviser to function as an
investment adviser or perform its obligations under the Management Agreement,
the Sub-Advisory Agreement, the Additional Compensation Agreement [and the
Structuring Fee Agreement] to which it is a party.
(ix) Money Laundering Laws. The operations of such Adviser are and have been
conducted at all times in compliance with the Money Laundering Laws and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving such Adviser with respect to the
Money Laundering Laws is pending or threatened.
(x) Foreign Corrupt Practices Act of 1977. Neither such Adviser nor any trustee,
director, partner, officer, agent, employee or affiliate of such Adviser is
aware of or has taken any action in connection with such Adviser, directly or
indirectly, that would result in a violation by such persons of the FCPA,
including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of
value to any "foreign official" (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA, and such Adviser, and to the
knowledge of such Adviser, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to continue to
ensure, continued compliance therewith.
(xi) OFAC. Neither such Adviser nor any trustee, director, partner, officer,
agent, employee or affiliate of such Adviser is currently subject to any U.S.
sanctions administered by OFAC; and such Adviser will not directly or indirectly
use the proceeds of the offering contemplated by this Agreement, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered by
OFAC.
(c) Officers' Certificates. Any certificate signed by any officer of the Fund or
an Adviser delivered to the Representatives or to counsel for the Underwriters
shall be deemed a representation and warranty by the Fund or such Adviser, as
the case may be, to each Underwriter as to the matters covered thereby.
2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Fund agrees to sell to each Underwriter, severally and not jointly, and each
AMR-223237-v5 12 80-20710670
Underwriter, severally and not jointly, agrees to purchase from the Fund, at the
price per share set forth in Schedule B, the number of Initial Securities set
forth in Schedule A opposite the name of such Underwriter, plus any additional
number of Initial Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Fund hereby grants an option to the Underwriters, severally and not
jointly, to purchase up to an additional [_________] Common Shares in the
aggregate at the price per share set forth in Schedule B, less an amount per
share equal to any dividends or distributions declared by the Fund and payable
on the Initial Securities but not payable on the Option Securities. The option
hereby granted will expire 45 days after the date hereof and may be exercised in
whole or in part from time to time only for the purpose of covering
overallotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Representatives to the
Fund setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time and date of delivery (a "Date
of Delivery") shall be determined by the Representatives, but shall not be later
than seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will purchase that proportion of
the total number of Option Securities then being purchased which the number of
Initial Securities set forth in Schedule A opposite the name of such Underwriter
bears to the total number of Initial Securities, subject in each case to such
adjustments as Xxxxxxx Xxxxx in its discretion shall make to eliminate any sales
or purchases of a fractional number of Option Securities plus any additional
number of Option Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
(c) Payment. Payment of the purchase price for, and delivery of certificates, if
any, for, the Initial Securities shall be made at the offices of Xxxxxxxx Chance
US LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as
shall be agreed upon by the Representatives and the Fund, at 10:00 a.m., Eastern
time, on the third (fourth, if the pricing occurs after 4:30 p.m., Eastern time,
on any given day) business day after the date hereof (unless postponed in
accordance with the provisions of Section 10), or such other time not later than
ten business days after such date as shall be reasonably agreed upon by the
Representatives and the Fund (such time and date of payment and delivery being
herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are purchased
by the Underwriters, payment of the purchase price for, and delivery of
certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Fund, on each Date of Delivery as specified in the notice from the
Representatives to the Fund.
Payment shall be made to the Fund by wire transfer of immediately available
funds to a bank account designated by the Fund, against delivery to the
Representatives for the respective accounts of the Underwriters of certificates
for the Securities to be purchased by them. It is understood that each
AMR-223237-v5 13 80-20710670
Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. Xxxxxxx Xxxxx, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities and the
Option Securities, if any, shall be in such denominations and registered in such
names as the Representatives may request in writing at least one full business
day before the Closing Time or the relevant Date of Delivery, as the case may
be. The certificates for the Initial Securities and the Option Securities, if
any, will be made available for examination and packaging by the Representatives
in the City of New York not later than 10:00 a.m., Eastern time, on the business
day prior to the Closing Time or the relevant Date of Delivery, as the case may
be.
3. Covenants.
(a) The Fund and the Advisers, jointly and severally, covenant with each
Underwriter as follows:
(i) Compliance with Securities Regulations and Commission Requests. The Fund,
subject to Section 3(a)(ii), will comply with the requirements of Rule 430A and
will notify the Representatives promptly, and confirm the notice in writing, (i)
when any post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended Prospectus shall
have been filed, (ii) of the receipt of any comments from the Commission, (iii)
of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes or of
any examination pursuant to Section 8(e) of the 1933 Act in connection with the
offering of the Securities, and (v) if the Fund becomes the subject of a
proceeding under Section 8A of the 1933 Act in connection with the offering of
the Securities. The Fund will promptly effect the filings necessary pursuant to
Rule 497 and will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 497 was
received for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Fund will make reasonable commercial efforts
to prevent the issuance of any stop order, or order of suspension or revocation
of registration pursuant to Section 8(e) of the 1940 Act, and, if any such stop
order or order of suspension or revocation of registration is issued, to obtain
the lifting thereof at the earliest possible moment.
(ii) Filing of Amendments. The Fund will give the Representatives notice of its
intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)), or any amendment, supplement or
AMR-223237-v5 14 80-20710670
revision to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, will furnish the Representatives
with copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any such
document to which the Representatives or counsel for the Underwriters shall
reasonably object in writing.
(iii) Delivery of Registration Statements. The Fund has furnished or will
deliver to the Representatives and counsel for the Underwriters, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein) and a signed copy of all consents and certificates of
experts, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The copies of
the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(iv) Delivery of Prospectuses. The Fund hereby consents to the use by each
Underwriter of any preliminary prospectus delivered by the Fund to the
Underwriter for purposes permitted by the 1933 Act. The Fund will furnish to
each Underwriter, without charge, during a period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(v) Continued Compliance with Securities Laws. If at any time when the
Prospectus (as amended or supplemented) is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the reasonable
opinion of counsel for the Underwriters or for the Fund, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the Rules and Regulations, the Fund will promptly prepare and file with
the Commission, subject to Section 3(a)(ii), such amendment or supplement as may
be necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Fund will
furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request. If at any time following
the issuance of a Rule 482 Statement, there occurred or there occurs an event or
development as a result of which such Rule 482 Statement included or would
include an untrue statement of a material fact or omitted or would omit to state
a material fact necessary in order to make the statements therein, in light of
the circumstances prevailing at that subsequent time, not misleading, the Fund
will promptly notify Xxxxxxx Xxxxx and will promptly amend or supplement, at its
own expense, such Rule 482 Statement to eliminate or correct such conflict.
AMR-223237-v5 15 80-20710670
(vi) Blue Sky Qualifications. The Fund will use its reasonable best efforts,
subject to the reasonable cooperation of the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions of the United States as the Representatives and
the Fund may designate and to maintain such qualifications in effect for a
period of not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement; provided,
however, that in no event shall the Fund be obligated to file any general
consent to service of process or to qualify as a foreign business trust or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Fund will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification, if any, in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b) Registration
Statement.
(vii) Rule 158. The Fund will make generally available to its securityholders as
soon as practicable an earnings statement, if applicable, for the purposes of,
and to provide to the Underwriters the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(viii) Use of Proceeds. The Fund will use the net proceeds received by it from
the sale of the Securities substantially in the manner specified in the
Prospectus under "Use of Proceeds".
(ix) Listing. The Fund will use its reasonable best efforts to effect the
listing of the Securities on the NYSE, subject to notice of issuance,
concurrently with the effectiveness of the Registration Statement.
(x) Restriction on Sale of Securities. During a period of 180 days from the date
of the Prospectus, the Fund will not, without the prior written consent of
Xxxxxxx Xxxxx, (A) directly or indirectly, offer, pledge, sell, contract to
sell, sell any option, rights or warrant to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of Common Shares or any securities convertible into or
exercisable or exchangeable for Common Shares or file any registration statement
under the 1933 Act with respect to any of the foregoing or (B) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Shares, whether any such swap or transaction described in clause (A) or
(B) above is to be settled by delivery of Common Shares or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (1)
the Securities to be sold hereunder or (2) Common Shares issued or, for
avoidance of doubt, purchased in the open market pursuant to any dividend
reinvestment plan.
(xi) Reporting Requirements. The Fund, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to the 1940 Act and
the 1934 Act within the time periods required by the 1940 Act and the Rules and
Regulations and the 1934 Act and the rules and regulations of the Commission
thereunder, respectively.
AMR-223237-v5 16 80-20710670
(xii) Subchapter M. The Fund intends to comply with the requirements of
Subchapter M of the Code to qualify as a regulated investment company under the
Code.
(xiii) Xxxxxxxx-Xxxxx Act. The Fund will comply in all material respects with
all applicable securities and other applicable laws, rules and regulations,
including, without limitation, the Xxxxxxxx-Xxxxx Act, and will use its
reasonable best efforts to cause the Fund's trustees and officers, in their
capacities as such, to comply in all material respects with such laws, rules and
regulations, including, without limitation, the provisions of the Xxxxxxxx-Xxxxx
Act.
(xiv) No Manipulation of Market for Securities. The Fund will not (a) take,
directly or indirectly, any action designed to cause or to result in, or that
might reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Fund to facilitate the sale or resale of the
Securities in violation of federal or state securities laws, and (b) except for
share repurchases permitted in accordance with applicable laws and purchases of
Securities in the open market pursuant to the Fund's dividend reinvestment plan,
until the Closing Date, or the Date of Delivery, if any, (i) sell, bid for or
purchase the Securities or pay any person any compensation for soliciting
purchases of the Securities or (ii) pay or agree to pay to any person any
compensation for soliciting another to purchase any other securities of the
Fund.
(xv) Rule 462(b) Registration Statement. If the Fund elects to rely upon Rule
462(b), the Fund shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 p.m., Eastern time, on the
date of this Agreement, and the Fund shall at the time of filing either pay to
the Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the 1933 Act.
4. Payment of Expenses.
(a) Expenses. The Fund will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, including any stock or other transfer taxes
and any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters, (iv) the fees and disbursements of the Fund's
counsel, independent registered public accounting firm and other advisors, (v)
the qualification of the Securities under securities laws in accordance with the
provisions of Section 3(a)(vi) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, Rule 482 Statement, if any, Prospectus and any
amendments or supplements thereto, and any costs associated with electronic
delivery of any of the foregoing by the Underwriters to investors, (vii) the
preparation, printing and delivery to the Underwriters of copies of the Blue Sky
Survey and any supplement thereto, (viii) the fees and expenses of any transfer
AMR-223237-v5 17 80-20710670
agent or registrar for the Securities, (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by FINRA of the terms of the sale of the Securities in an
amount up to $7,500 (which will not exceed .002% of the total price to the
public of the Common Shares sold in this offering), (x) the fees and expenses
incurred in connection with the listing of the Securities on the NYSE and (xi)
the printing of any sales material. In addition, the Fund shall pay to the
Underwriters $.00667 per Common Share as partial reimbursement of expenses
incurred in connection with the offering. The amount paid by the Fund as this
partial reimbursement to the Underwriters will not exceed .03335% of the total
price to the public of the Common Shares sold in this offering. The Investment
Adviser has agreed to pay (i) all organizational expenses of the Fund, and (ii)
offering costs (other than sales load, but including the partial reimbursement
of expenses described above) of the Fund that exceed $0.04 per Common Share. The
Sub-Adviser has agreed to reimburse the Investment Adviser for one-half of such
organizational expenses and offering costs of the Fund that exceed $0.04 per
Common Share. The sum total of all compensation received by the Underwriters in
connection with this offering, including sales load and all forms of
compensation to and reimbursement of Underwriters will not exceed 9.0% of the
total price to the public of the Common Shares sold in this offering.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section 9(a)
hereof, the Fund and each of the Advisers, jointly and severally, agree that
they shall reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
These counsel fees shall not exceed $7,500.
5. Conditions of Underwriters' Obligations.
The obligations of the several Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Fund and each of the
Advisers contained in Section 1 hereof or in certificates of any officer of the
Fund or either of the Advisers delivered pursuant to the provisions hereof, to
the performance by the Fund and each of the Advisers of their respective
covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective or will
have become effective by 5:30 p.m., Eastern time, on the date hereof, and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act, no notice or order pursuant
to Section 8(e) of the 1940 Act shall have been issued, and no proceedings with
respect to either shall have been initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with or waived to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430A Information shall have been
filed with the Commission in accordance with Rule 497 (or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A or a certificate must
have been filed in accordance with Rule 497(j)).
(b) Opinions of Counsel for Fund and Advisers. At Closing Time, the
Representatives shall have received the favorable opinions, dated as of Closing
Time, of Xxxxxxx and Xxxxxx LLP, counsel for the Fund and First Trust,
AMR-223237-v5 18 80-20710670
substantially in the forms set forth in Exhibit A with respect to the Fund and
Exhibit B with respect to First Trust, and of [_________], counsel for Halbis,
substantially in the form set forth in Exhibit C, together with signed or
reproduced copies of such letters for each of the other Underwriters or in such
other forms and substance satisfactory to counsel to the Underwriters. In giving
such opinion such counsel may rely, as to matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal law of
the United States, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Fund and the Advisers and certificates of public
officials.
(c) Opinion of Counsel for Underwriters. At Closing Time, the Representatives
shall have received the favorable opinion, dated as of Closing Time, of Xxxxxxxx
Chance US LLP, counsel in the form set forth in Exhibit D for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters with respect to the matters set forth in clauses (i), (ii), (vi),
(vii) (solely as to preemptive or other similar rights arising by operation of
law or under the charter or by-laws of the Fund), (viii) through (x), inclusive,
(xii), (xv) (solely as to the information in the Prospectus under "Description
of Shares") and the last paragraph of Exhibit A hereto. In giving such opinion
such counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York and the federal law of the United
States, upon the opinions of counsel satisfactory to the Representatives. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Fund and the Advisers and certificates of public officials.
(d) Officers' Certificates. At Closing Time, there shall not have been, since
the date hereof or since the respective dates as of which information is given
in the Prospectus or the General Disclosure Package, any material adverse change
in the financial condition, earnings or business affairs of the Fund, whether or
not arising in the ordinary course of business, and the Representatives shall
have received a certificate of a duly authorized officer of the Fund and of the
chief financial or chief accounting officer of the Fund and of the President or
a Vice President or Managing Director of each Adviser, dated as of Closing Time,
to the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Sections 1(a) and (b) hereof, as applicable,
are true and correct with the same force and effect as though expressly made at
and as of Closing Time, (iii) such Fund or Adviser, as applicable, has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, (iv) with respect to the certificate by
an officer of each Adviser only, there has been no material adverse change in
the financial condition, earnings or business affairs of such Adviser, whether
or not arising in the ordinary course of business, and (v) with respect to the
Fund only, no stop order suspending the effectiveness of the Registration
Statement, or order of suspension or revocation of registration pursuant to
Section 8(e) of the 1940 Act, has been issued and no proceedings for any such
purpose have been instituted or are pending or are contemplated by the
Commission.
(e) Independent Registered Public Accounting Firm's Comfort Letter. At the time
of the execution of this Agreement, the Representatives shall have received from
[________] a letter dated such date, in form and substance satisfactory to the
AMR-223237-v5 19 80-20710670
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the type
ordinarily included in independent registered public accounting firms' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Representatives shall have
received from [________] a letter, dated as of Closing Time, to the effect that
they reaffirm the statements made in the letter furnished pursuant to subsection
(e) of this Section, except that the specified date referred to shall be a date
not more than three business days prior to Closing Time.
(g) Approval of Listing. At Closing Time, the Securities shall have been
approved for listing on the NYSE, subject only to official notice of issuance.
(h) No Objection. FINRA has confirmed that it has not raised any objection with
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(i) Execution of Additional Compensation Agreement. At Closing Time, Xxxxxxx
Xxxxx shall have received the Additional Compensation Agreement, dated as of the
Closing Date, as executed by the Investment Adviser [other additional
compensation agreements, as applicable].
(j) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Fund contained herein and the statements in any certificates furnished by
the Fund hereunder shall be true and correct as of each Date of Delivery and, at
the relevant Date of Delivery, the Representatives shall have received:
(i) Officers' Certificates. Certificates, dated such Date of Delivery, of a duly
authorized officer of the Fund and of the chief financial or chief accounting
officer of the Fund and of the President or a Vice President or Managing
Director of each Adviser confirming that the information contained in the
certificate delivered by each of them at the Closing Time pursuant to Section
5(d) hereof remains true and correct as of such Date of Delivery.
(ii) Opinions of Counsel for the Fund and the Advisers. The favorable opinions
of counsel for the Fund and the Advisers, substantially in the forms set forth
in Exhibit A, Exhibit B and Exhibit C hereto, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(b) hereof.
(iii) Opinion of Counsel for the Underwriters. The favorable opinion of Xxxxxxxx
Chance US LLP, counsel for the Underwriters, substantially in the form set forth
in Exhibit D hereto, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(c) hereof.
(iv) Bring-down Comfort Letter. A letter from [________], in form and substance
satisfactory to the Representatives and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Representatives pursuant to Section 5(f) hereof, except that the "specified
AMR-223237-v5 20 80-20710670
date" in the letter furnished pursuant to this paragraph shall be a date not
more than three business days prior to such Date of Delivery.
(k) Additional Documents. At Closing Time and at each Date of Delivery, counsel
for the Underwriters shall have been furnished with such other documents as they
may require and as are customarily provided for the purpose of enabling them to
pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Fund and the Advisers in connection with the organization and
registration of the Fund under the 1940 Act and the issuance and sale of the
Securities as herein contemplated shall be satisfactory in form and substance to
the Representatives and counsel for the Underwriters.
(l) Termination of Agreement. If any condition specified in this Section shall
not have been fulfilled by the Fund or the Advisers when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the purchase of
Option Securities, on a Date of Delivery which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the Fund and
each Adviser at any time at or prior to Closing Time or such Date of Delivery,
as the case may be, and such termination shall be without liability of any party
to any other party except as provided in Section 4 and except that Sections 1,
6, 7, 8 and 12 shall survive any such termination and remain in full force and
effect.
6. Indemnification.
(a) Indemnification of Underwriters. The Fund and the Advisers, jointly and
severally, agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever,
as incurred, arising out of any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement (or any amendment
thereto), including the Rule 430A Information or the omission or alleged
omission therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus, the Rule 482 Statement, if any, or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever,
as incurred, to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission;
provided that (subject to Section 6(e) below) any such settlement is effected
with the written consent of the Fund and each Adviser; and
AMR-223237-v5 21 80-20710670
(iii) against any and all expense whatsoever, as incurred (including the fees
and disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Fund or an
Adviser by any Underwriter through Xxxxxxx Xxxxx expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of the Fund, Advisers, Trustees, Directors and Officers.
Each Underwriter severally agrees to indemnify and hold harmless the Fund and
the Advisers, their respective trustees and directors, each of the Fund's
officers who signed the Registration Statement, and each person, if any, who
controls the Fund or an Adviser within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information, or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Fund or the Advisers by such Underwriter through Xxxxxxx Xxxxx expressly
for use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Indemnification for Marketing Materials. In addition to the foregoing
indemnification, the Fund and the Advisers also, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, against any and all loss, liability, claim, damage
and expense described in the indemnity contained in Section 6(a), as limited by
the proviso set forth therein, with respect to any Sales Material.
(d) Actions against Parties; Notification. Each indemnified party shall give
notice as promptly as reasonably practicable to each indemnifying party of any
action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Fund or an Adviser, as applicable.
In each case such counsel shall be reasonably satisfactory to the indemnified
party, and the indemnifying party shall have the right to assume the defense of
such action. An indemnified party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
AMR-223237-v5 22 80-20710670
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying party be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from its own counsel for all indemnified parties in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(e) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its written consent if (i)
such settlement is entered into more than 60 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
7. Contribution.
If the indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Fund or the Advisers on the one hand and the
Underwriters on the other hand from the offering of the Securities pursuant to
this Agreement or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Fund and the Advisers on the one hand and of the Underwriters on the other
hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Fund and the Advisers on the one hand and
the Underwriters on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Fund and the total underwriting discount received by the Underwriters
(whether from the Fund or otherwise), in each case as set forth on the cover of
the Prospectus, bear to the aggregate initial public offering price of the
Securities as set forth on such cover.
AMR-223237-v5 23 80-20710670
The relative fault of the Fund and the Advisers on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Fund or the Advisers or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Fund, the Advisers and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as such Underwriter, and each trustee
of the Fund and each director of an Adviser, respectively, each officer of the
Fund who signed the Registration Statement, and each person, if any, who
controls the Fund or any Adviser, within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act, shall have the same rights to contribution as
the Fund and such Adviser, respectively. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Initial Securities set forth opposite their respective names in
Schedule A hereto and not joint.
8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and covenants contained in this Agreement or in
certificates of officers of the Fund or an Adviser submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Fund or an Adviser, and shall survive delivery of the
Securities to the Underwriters.
AMR-223237-v5 24 80-20710670
9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this Agreement, by
notice to the Fund, at any time at or prior to Closing Time (i) if, in the
judgment of the Representatives, there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in
the Prospectus or the General Disclosure Package, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Fund or an Adviser, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in the
Common Shares of the Fund has been suspended or materially limited by the
Commission or the NYSE, or if trading generally on the NYSE or in the Nasdaq
Global Market has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, FINRA or any other governmental authority, or a material disruption
has occurred in commercial banking or securities settlement or clearance
services in the United States, or (iv) if a banking moratorium has been declared
by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 1, 6, 7, 8 and
12 shall survive such termination and remain in full force and effect.
10. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at Closing Time or a Date of
Delivery to purchase the Securities which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the Representatives shall
have the right, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the number of
Securities to be purchased on such date, each of the non-defaulting Underwriters
shall be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date, this Agreement or, with respect to any
Date of Delivery which occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Fund to sell the Option Securities to be
AMR-223237-v5 25 80-20710670
purchased and sold on such Date of Delivery shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of this
Agreement or, in the case of a Date of Delivery which is after the Closing Time,
which does not result in a termination of the obligation of the Underwriters to
purchase and the Fund to sell the relevant Option Securities, as the case may
be, either the Representatives or the Fund shall have the right to postpone
Closing Time or the relevant Date of Delivery, as the case may be, for a period
not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
As used herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10.
11. Notices.
All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to the
Representatives, c/o Merrill Xxxxx & Co., Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx
00000, attention of Equity Capital Markets; notices to the Fund or the First
Trust shall be directed, as appropriate, to the office of First Trust Advisors
L.P. at 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxx, Xxxxxxxx 00000, Attention: [o];
and notices to Halbis shall be directed to it at 00 Xx. Xxxxx'x Xxxxxx, Xxxxxx
XX0X 0XX, Attention: [o].
12. Parties.
This Agreement shall inure to the benefit of and be binding upon each of the
Underwriters, the Fund, the Advisers and each of their respective partners and
successors and controlling persons referred to herein. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters, the Fund, the Advisers
and their respective successors and the controlling persons and officers,
trustees and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Fund, the Advisers and each of their
respective partners and successors, and said controlling persons and officers,
trustees and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
13. No Fiduciary Relationship.
The Fund acknowledges and agrees that (i) the purchase and sale of the
Securities pursuant to this Agreement, including the determination of the public
offering price of the Securities and any related discounts and commissions, is
an arm's-length commercial transaction between the Fund, on the one hand, and
the several Underwriters, on the other hand, (ii) in connection with the
offering contemplated hereby and the process leading to such transaction each
AMR-223237-v5 26 80-20710670
Underwriter is and has been acting solely as a principal and is not the agent or
fiduciary of the Fund or its stockholders, creditors, employees or any other
party, (iii) no Underwriter has assumed or will assume an advisory or fiduciary
responsibility in favor of the Fund with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter
has advised or is currently advising the Fund on other matters) and no
Underwriter has any obligation to the Fund with respect to the offering
contemplated hereby except the obligations expressly set forth in this
Agreement, (iv) the Underwriters and their respective affiliates may be engaged
in a broad range of transactions that involve interests that differ from those
of the Fund, and (v) the Underwriters have not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby and
the Fund has consulted its own legal, accounting, regulatory and tax advisors to
the extent it deemed appropriate.
14. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID
STATE. UNLESS OTHERWISE EXPLICITLY PROVIDED, SPECIFIED TIMES OF DAY REFER TO
EASTERN TIME.
15. Effect of Headings.
The Article and Section headings herein are for convenience only and shall not
affect the construction hereof.
16. Massachusetts Business Trust.
A copy of the declaration of trust of the Fund is on file with the Secretary of
The Commonwealth of Massachusetts, and notice is hereby given that this
Agreement is executed on behalf of the Fund by an officer or trustee of the Fund
in his or her capacity as an officer or trustee of the Fund and not individually
and that the obligations of or arising out of this instrument are not binding
upon any of the trustees, officers or shareholders individually but are binding
only upon the assets and property of the Fund.
[Signatures on Following Pages]
AMR-223237-v5 27 80-20710670
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement among the
Underwriters, the Fund and each of the Advisers in accordance with its terms.
Very truly yours,
FIRST TRUST GLOBAL CREDIT
STRATEGIES FUND
By:
--------------------------------
Name:
Title:
FIRST TRUST ADVISORS L.P.
By:
--------------------------------
Name:
Title:
HALBIS CAPITAL MANAGEMENT (UK) LTD.
By:
-------------------------------
Name:
Title:
AMR-223237-v5 28 80-20710670
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
[OTHER CO-MANAGERS]
By: Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By:
----------------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
AMR-223237-v5 29 80-20710670
SCHEDULE A
Number of Initial
Name of Underwriter Securities
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated..... [________]
[Other Co-Managers].................................... [________]
Total............................................... [________]
--------------------------------------------------------------------------------
AMR-223237-v5 30 80-20710670
SCHEDULE B
First Trust Global Credit Strategies Fund
[________] Common Shares of Beneficial Interest
(Par Value $0.01 Per Share)
1 The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $20.00.
2 The purchase price per share for the Securities to be paid by the
several Underwriters shall be $19.10, being an amount equal to the initial
public offering price set forth above less $0.90 per share; provided that the
purchase price per share for any Option Securities purchased upon the exercise
of the overallotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the Fund
and payable on the Initial Securities but not payable on the Option Securities.
AMR-223237-v5 31 80-20710670
SCHEDULE C
Oral Information, if any, included as part of the General Disclosure Package
(1) The number of shares offered by the Fund (assuming no exercise of the
underwriters' overallotment option) is [iE] and the initial public offering
price of those shares is $20.00 per share.
AMR-223237-v5 32 80-20710670
SCHEDULE D
Rule 482 Statement
[None.]
AMR-223237-v5 33 80-20710670
EXHIBIT A
FORM OF OPINION OF FUND'S
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(B)
(i) The Fund has been duly organized and is validly existing as a
business trust in good standing under the laws of The
Commonwealth of Massachusetts.
(ii) The Fund has business trust 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
to enter into and perform its obligations under the Purchase
Agreement.
(iii) The Fund is duly qualified as a foreign business trust to
transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse
Effect.
(iv) The Fund does not have any subsidiaries.
(v) The authorized, issued and outstanding shares of beneficial
interest of the Fund are as set forth in the Prospectus under
the caption "Description of Shares--Common Shares"; all issued
and outstanding shares of beneficial interest of the Fund have
been duly authorized and validly issued and are fully paid and
non-assessable and have been offered and sold or exchanged by
the Fund in compliance with all applicable laws (including,
without limitation, federal and state securities laws); the
Common Shares conform as to legal matters to all statements
relating thereto contained in the Prospectus and such
description conforms to the rights set forth in the
instruments defining the same; and none of the outstanding
shares of beneficial interest of the Fund was issued in
violation of the preemptive or other similar rights of any
securityholder of the Fund.
(vi) The Securities to be purchased by the Underwriters from the
Fund have been duly authorized for issuance and sale to the
Underwriters pursuant to the Purchase Agreement and, when
issued and delivered by the Fund pursuant to the Purchase
Agreement against payment of the consideration set forth in
the Purchase Agreement, will be validly issued and fully paid
and non-assessable and no holder of the Securities is or will
be subject to personal liability by reason of being such a
holder.
(vii) The issuance of the Securities is not subject to preemptive or
other similar rights of any securityholder of the Fund.
(viii) The Purchase Agreement has been duly authorized, executed and
delivered by the Fund.
AMR-223237-v5 A-1 80-20710670
(ix) The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the
1933 Act; any required filing of the Prospectus pursuant to
Rule 497(c) or Rule 497(h) has been made in the manner and
within the time period required by Rule 497; and no stop order
suspending the effectiveness of the Registration Statement or
any Rule 462(b) Registration Statement has been issued under
the 1933 Act, and no order of suspension or revocation of
registration pursuant to Section 8(e) of the 1940 Act has been
issued, and no proceedings for any such purpose have been
instituted or are pending or threatened by the Commission.
(x) The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information, the
Prospectus and each amendment or supplement to the
Registration Statement and Prospectus as of their respective
effective or issue dates (except for financial statements,
supporting schedules and other financial data included therein
or omitted therefrom, as to which we need express no opinion),
and the notification on Form N-8A, complied as to form in all
material respects with the requirements of the 1933 Act, the
1940 Act and the Rules and Regulations.
(xi) The form of certificate used to evidence the Common Shares
complies in all material respects with all applicable
statutory requirements, with any applicable requirements of
the declaration of trust and by-laws of the Fund and the
requirements of the New York Stock Exchange.
(xii) To the best of our knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or
investigation, to which the Fund is a party, or to which the
property of the Fund is subject, before or brought by any
court or governmental agency or body, domestic or foreign,
which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets of
the Fund or the consummation of the transactions contemplated
in the Purchase Agreement or the performance by the Fund of
its obligations thereunder.
(xiii) The information in the Prospectus under "Description of
Shares" and "Tax Matters" and in the Registration Statement
under Item 29 (Indemnification), to the extent that it
constitutes matters of law, summaries of legal matters, the
Fund's declaration of trust and by-laws or legal proceedings,
or legal conclusions is correct in all material respects.
(xiv) Each of the Management Agreement, the Sub-Advisory Agreement,
the Administration Agreement, the Custodian Agreement, the
Transfer Agency Agreement and the Purchase Agreement comply in
all material respects with all applicable provisions of the
1940 Act, the Advisers Act, the Rules and Regulations and the
Advisers Act Rules and Regulations.
(xv) The Fund is duly registered with the Commission under the 1940
Act as a closed-end, diversified management investment
company; and, to the best of our knowledge, no order of
AMR-223237-v5 A-2 80-20710670
suspension or revocation of such registration has been issued
or proceedings therefor initiated or threatened by the
Commission.
(xvi) To the best of our knowledge, no person is serving as an
officer, trustee or investment adviser of the Fund except in
accordance with the 1940 Act and the Rules and Regulations and
the Investment Advisers Act and the Advisers Act Rules and
Regulations. Except as disclosed in the Registration Statement
and Prospectus (or any amendment or supplement to either of
them), to the best of our knowledge, no trustee of the Fund is
an "interested person" (as defined in the 0000 Xxx) of the
Fund or an "affiliated person" (as defined in the 0000 Xxx) of
an Underwriter.
(xvii) There are no statutes or regulations that are required to be
described in the Prospectus that are not described as
required.
(xviii) All descriptions in the Registration Statement of contracts
and other documents to which the Fund is a party are accurate
in all material respects. There are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct in all
material respects.
(xix) The Fund is not in violation of its declaration of trust or
by-laws and no default by the Fund exists in the due
performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
agreement or instrument that is described or referred to in
the Registration Statement or the Prospectus or filed or
incorporated by reference as an exhibit to the Registration
Statement.
(xx) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or
governmental authority or agency (other than under the 1933
Act, the 1934 Act, the 1940 Act and the Rules and Regulations,
which have been obtained, or as may be required under the
securities or blue sky laws of the various states, as to which
we need express no opinion) is necessary or required in
connection with the due authorization, execution and delivery
of the Purchase Agreement or for the offering, issuance or
sale of the Securities or the consummation of the transactions
contemplated by this Agreement.
(xxi) The execution, delivery and performance of the Purchase
Agreement and the consummation of the transactions
contemplated in the Purchase Agreement and in the Registration
Statement (including the issuance and sale of the Securities
and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use of
Proceeds") and compliance by the Fund with its obligations
under the Purchase Agreement do not and will not, whether with
or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or
AMR-223237-v5 A-3 80-20710670
Repayment Event (as defined in Section 1(a)(xii) of the
Purchase Agreement) under or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Fund pursuant to any contract,
indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or any other agreement or instrument, known to us,
to which the Fund is a party or by which it or any of them may
be bound, or to which any of the property or assets of the
Fund is subject, nor will such action result in any violation
of the provisions of the charter or by-laws of the Fund, or
any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign,
having jurisdiction over the Fund or any of its properties,
assets or operations.
(xxii) The Purchase Agreement, the Management Agreement, the
Administration Agreement, the Sub-Advisory Agreement, the
Custodian Agreement and the Transfer Agency Agreement have
each been duly authorized by all requisite action on the
part of the Fund, executed and delivered by the Fund, as of
the dates noted therein. Assuming due authorization,
execution and delivery by the other parties thereto, each
such agreement constitutes a valid and binding agreement of
the Fund, enforceable in accordance with its terms, except
as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws and public
policy and except as affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered
in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing.
In addition, we have participated in the preparation of the Registration
Statement, the Prospectus and the documents included in the General Disclosure
Package and participated in discussions with certain officers, trustees and
employees of the Fund, representatives of [________], the independent registered
public accounting firm who examined the statement of assets and liabilities of
the Fund included or incorporated by reference in the Registration Statement and
the Prospectus, and you and your representatives and we have reviewed certain
Fund records and documents. While we have not independently verified and are not
passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of the information contained in the Registration
Statement and the Prospectus, except to the extent necessary to enable us to
give the opinions with respect to the Fund in paragraphs (A)(v), (xiii) and
(xviii), on the basis of such participation and review, nothing has come to our
attention that would lead us to believe that the Registration Statement (except
for financial statements, supporting schedules and other financial data included
therein or omitted therefrom, as to which we do not express any belief), at the
time such Registration Statement became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus (except for financial statements, supporting schedules and other
financial data included therein or omitted therefrom, as to which we do not
express any belief), at the time the Prospectus was issued, or at the Closing
Time or any Date of Delivery, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. In addition, nothing has come to our attention that
caused us to believe that the documents included in the General Disclosure
Package (except for financial statements, supporting schedules and other
financial data included therein or omitted therefrom, as to which we do not
express any belief), as of the Applicable Time, included an untrue statement of
a material fact or omitted to state a material fact necessary in order to make
AMR-223237-v5 A-4 80-20710670
the statements therein, in light of the circumstances in which they were made,
not misleading. With respect to statements contained in the General Disclosure
Package, any statement contained in any of the constituent documents shall be
deemed to be modified or superseded to the extent that any information contained
in subsequent constituent documents modifies or replaces such document.
AMR-223237-v5 A-5 80-20710670
EXHIBIT B
FORM OF OPINION OF INVESTMENT ADVISER'S
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(B)
(i) The Investment Adviser has been duly organized and is validly
existing as a limited partnership in good standing under the
laws of the State of Illinois.
(ii) The Investment Adviser has full limited partnership power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to
enter into and perform its obligations under the Purchase
Agreement.
(iii) The Investment Adviser is duly qualified to transact business
and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not result in a
material adverse effect.
(iv) The Investment 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 Rules and Regulations from
acting under the Management Agreement and each of the
Sub-Advisory Agreements.
(v) The Purchase Agreement, the Management Agreement, the
Sub-Advisory Agreement and the Additional Compensation
Agreement have been duly authorized, executed and delivered
by the Investment Adviser, and each of the Management
Agreement, the Sub-Advisory Agreement and the Additional
Compensation Agreement constitutes a valid and binding
obligation of the Investment Adviser, enforceable in
accordance with its terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state
securities laws and public policy and except as affected by
bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally and general
equitable principles (whether considered in a proceeding in
equity or at law).
(vi) To the best of our knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or
investigation, to which the Investment Adviser is a party,
or to which the property of the Investment Adviser is
subject, before or brought by any court or governmental
agency or body, domestic or foreign, which might reasonably
be expected to result in any material adverse change in the
financial condition, earnings or business affairs of the
Investment Adviser, materially and adversely affect the
properties or assets of the Investment Adviser or materially
impair or adversely affect the ability of the Investment
Adviser to function as an investment adviser or perform its
obligations under the Management Agreement and the
Sub-Advisory Agreement, or which is required to be disclosed
in the Registration Statement or the Prospectus.
AMR-223237-v5 B-1 80-20710670
(vii) There are no franchises, contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required
to be described or referred to in the Registration Statement
or to be filed as exhibits thereto other than those described
or referred to therein or filed or incorporated by reference
as exhibits thereto, and the descriptions thereof or
references thereto are correct in all material respects.
(viii) The Investment Adviser is not in violation of its limited
partnership agreement, by-laws or other organizational
documents and no default by the Investment Adviser exists in
the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
agreement or instrument that is described or referred to in
the Registration Statement or the Prospectus or filed or
incorporated by reference as an exhibit to the Registration
Statement.
(ix) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other
than under the 1933 Act, the 1940 Act and the Rules and
Regulations, which have been obtained, or as may be required
under the securities or blue sky laws of the various states,
as to which we need express no opinion) is necessary or
required in connection with the due authorization, execution
and delivery of the Purchase Agreement.
(x) The execution, delivery and performance of the Purchase
Agreement and the consummation of the transactions
contemplated in the Purchase Agreement and in the
Registration Statement and compliance by the Investment
Adviser with its obligations under the Purchase Agreement do
not and will not, whether with or without the giving of
notice or lapse of time or both, conflict with or constitute
a breach of, or default or Repayment Event (as defined in
Section 1(a)(xii) of the Purchase Agreement) under or result
in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Investment
Adviser pursuant to any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or any other
agreement or instrument, known to us, to which the
Investment Adviser is a party or by which it or any of them
may be bound, or to which any of the property or assets of
the Investment Adviser is subject (except for such
conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect),
nor will such action result in any violation of the
provisions of the charter or by-laws of the Investment
Adviser, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to us, of any
government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Investment Adviser or
any of its properties, assets or operations (except for such
violations that would not have a material adverse effect).
In addition, we have participated in the preparation of the portions of the
Registration Statement and Prospectus describing the Investment Adviser and
participated in discussions with certain officers, trustees and employees of the
Fund and representatives of the Investment Adviser. While we have not
independently verified and are not passing upon, and do not assume any
AMR-223237-v5 B-2 80-20710670
responsibility for, the accuracy, completeness or fairness of the information
contained in such portions of the Registration Statement and the Prospectus, on
the basis of such participation and review, nothing has come to our attention
that would lead us to bel ieve that such portions of the Registration Statement
(except for financial statements, supporting schedules and other financial data
included therein or omitted therefrom, as to which we do not express any
belief), at the time such Registration Statement became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that such portions of the Prospectus (except for financial statements,
supporting schedules and other financial data included therein or omitted
therefrom, as to which we do not express any belief), at the time the Prospectus
was issued, or at the Closing Time or any Date of Delivery, included or include
an untrue statement of a material fact or omitted or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In addition, nothing
has come to our attention that caused us to believe that the portions of the
documents included in the General Disclosure Package describing the Investment
Adviser (except for financial statements, supporting schedules and other
financial data included therein or omitted therefrom, as to which we do not
express any belief), as of the Applicable Time, included an untrue statement of
a material fact or omitted to state a material fact necessary in order to make
the statements therein, in light of the circumstances in which they were made,
not misleading. With respect to statements contained in the General Disclosure
Package, any statement contained in any of the constituent documents shall be
deemed to be modified or superseded to the extent that any information contained
in subsequent constituent documents modifies or replaces such document.
AMR-223237-v5 B-3 80-20710670
EXHIBIT C
FORM OF OPINION OF INVESTMENT SUB-ADVISER'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(B)
(i) The Sub-Adviser has been duly organized and is validly
existing as a corporation and in good standing under the laws
of the State of Delaware.
(ii) The Sub-Adviser has full corporate power and authority to own,
lease and operate its properties and to conduct its business
as described in the Prospectus and to enter into and perform
its obligations under the Purchase Agreement and the
Sub-Advisory Agreement.
(iii) The Sub-Adviser is duly qualified as a foreign corporation to
transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify
would not result in a material adverse effect.
(iv) The Sub-Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act and is not
prohibited by the Advisers Act, the Advisers Act Rules and
Regulations, the 1940 Act or the Rules and Regulations from
acting under the Sub-Advisory Agreement.
(v) The Purchase Agreement and the Sub-Advisory Agreement have
been duly authorized, executed and delivered by the
Sub-Adviser, and each of the Purchase Agreement and the
Sub-Advisory Agreement constitutes a valid and binding
obligation of the Sub-Adviser, enforceable against it in
accordance with its terms, except as affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors'
rights generally and general equitable principles (whether
considered in a proceeding in equity or at law).
(vi) To the best of our knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or
investigation, to which the Sub-Adviser is a party, or to
which the property of the Sub-Adviser is subject, before or
brought by any court or governmental agency or body,
domestic or foreign, which might reasonably be expected to
result in any material adverse change in the condition,
financial or otherwise, in the earnings, business affairs or
business prospects of the Sub-Adviser, materially and
adversely affect the properties or assets of the Sub-Adviser
or materially impair or adversely affect the ability of the
Sub-Adviser to function as an investment adviser or perform
its obligations under the Sub-Advisory Agreement, or which
is required to be disclosed in the Registration Statement or
the Prospectus.
(vii) There are no franchises, contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments to which
the Sub-Adviser is a party required to be described or
referred to in the Registration Statement or to be filed as
exhibits thereto other than those described or referred to
AMR-223237-v5 C-1 80-20710670
therein or filed or incorporated by reference as exhibits
thereto, and the descriptions thereof or references thereto
are correct in all material respects.
(viii) The Sub-Adviser is not in violation of its certificate of
incorporation, by-laws or other organizational documents and
no default by the Sub-Adviser exists in the due performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument that
is described or referred to in the Registration Statement or
the Prospectus or filed or incorporated by reference as an
exhibit to the Registration Statement.
(ix) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other
than under the 1933 Act, the 1940 Act and the Rules and
Regulations, which have been obtained, or as may be required
under the securities or blue sky laws of the various states,
as to which we need express no opinion) is necessary or
required in connection with the due authorization, execution
and delivery of the Purchase Agreement.
(x) The execution, delivery and performance of the Purchase
Agreement and the Sub-Advisory Agreement and the
consummation of the transactions contemplated in the
Purchase Agreement and the Sub-Advisory Agreement and in the
Registration Statement and compliance by the Sub-Adviser
with its obligations under the Purchase Agreement and the
Sub-Advisory Agreement do not and will not, whether with or
without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section 1(a)(xii) of the
Purchase Agreement) under or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Sub-Adviser pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument,
known to us, to which the Sub-Adviser is a party or by which
it or any of them may be bound, or to which any of the
property or assets of the Sub-Adviser is subject (except for
such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect),
nor will such action result in any violation of the
provisions of the charter or by-laws of the Sub-Adviser, or
any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign,
having jurisdiction over the Sub-Adviser or any of its
properties, assets or operations.
In addition, we have participated in the preparation of the portions of the
Registration Statement and Prospectus describing the Sub-Adviser and
participated in discussions with certain officers, trustees and employees of the
Fund and representatives of the Sub-Adviser. While we have not independently
verified and are not passing upon, and do not assume any responsibility for, the
accuracy, completeness or fairness of the information contained in such portions
of the Registration Statement and the Prospectus, on the basis of such
AMR-223237-v5 C-2 80-20710670
participation and review, nothing has come to our attention that would lead us
to believe that such portions of the Registration Statement (except for
financial statements, supporting schedules and other financial data included
therein or omitted therefrom, as to which we do not express any belief), at the
time such Registration Statement became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that such
portions of the Prospectus (except for financial statements, supporting
schedules and other financial data included therein or omitted therefrom, as to
which we do not express any belief), at the time the Prospectus was issued, or
at the Closing Time or any Date of Delivery, included or include an untrue
statement of a material fact or omitted or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In addition, nothing
has come to our attention that caused us to believe that the portions of the
documents included in the General Disclosure Package describing the Sub-Adviser
(except for financial statements, supporting schedules and other financial data
included therein or omitted therefrom, as to which we do not express any
belief), as of the Applicable Time, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances in which they were made, not
misleading. With respect to statements contained in the General Disclosure
Package, any statement contained in any of the constituent documents shall be
deemed to be modified or superseded to the extent that any information contained
in subsequent constituent documents modifies or replaces such document.
AMR-223237-v5 C-3 80-20710670
EXHIBIT D
FORM OF OPINION OF COUNSEL FOR THE UNDERWRITERS
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(i) The Fund has been formed under its declaration of trust and is validly
existing under the laws of the Commonwealth of Massachusetts as a voluntary
association with transferable shares of beneficial interest commonly referred to
as a "Massachusetts business trust" and is in good standing with the Office of
the Secretary of the Commonwealth;
(ii) The Fund has full power and authority as a business trust to own, lease
and operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus and to enter into and perform its
obligations under the Underwriting Agreement;
(iii) The Shares to be purchased by the Underwriters from the Fund have been
duly authorized for issuance and sale to the Underwriters pursuant to the
Underwriting Agreement and, when issued and delivered by the Fund pursuant to
the Underwriting Agreement against payment of the consideration set forth in the
Underwriting Agreement, will be validly issued and fully paid and
non-assessable, except that, as described in the Prospectus under the heading
"Certain Provisions in the Declaration of Trust and By-Laws," shareholders of
the Fund may under certain circumstances be held personally liable for the
Fund's obligations;
(iv) No person has any preemptive right in respect of the Shares pursuant to
the Fund's declaration of trust or by-laws or under Massachusetts law, or to our
knowledge, otherwise;
(v) The Underwriting Agreement has been duly authorized, executed and
delivered by the Fund;
(vi) The Registration Statement has been declared effective under the
Securities Act; any required filing of the Prospectus pursuant to Rule 497(c) or
Rule 497(h) has been made in the manner and within the time period required by
Rule 497; and, to the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the Securities
Act, and, to the best of our knowledge, no order of suspension or revocation of
registration pursuant to Section 8(e) of the 1940 Act has been issued, and no
proceedings for any such purpose have been instituted or are pending or
threatened by the Commission;
(vii) The Registration Statement, the Rule 430A Information, the Prospectus
and each amendment or supplement to the Registration Statement and Prospectus as
of their respective effective or issue dates (other than the financial
statements and supporting schedules including the notes and schedules thereto,
and other financial or accounting data included therein or omitted therefrom, as
to which we express no view), and the notification on Form N-8A complied as to
form in all material respects with the requirements of the 1933 Act, the 1940
Act and the Rules and Regulations; and
(viii) The information in the Prospectus under "Description of Shares" and
"Tax Matters" and in the Registration Statement under Item 30 (Indemnification),
AMR-223237-v5 D-1 80-20710670
to the extent that it constitutes matters of law, summaries of legal matters,
the Fund's declaration of trust and by-laws or legal proceedings, or legal
conclusions, is correct in all material respects.
In addition, we have participated in the preparation of the Registration
Statement and the Prospectus and participated in discussions with certain
officers, trustees and employees of the Fund, representatives of [ ], the
independent registered public accounting firm who examined the financial
statements of the Fund included or incorporated by reference in the Registration
Statement and the Prospectus, and you and your representatives and we have
reviewed certain Fund records and documents. While we have not independently
verified and are not passing upon, and do not assume any responsibility for, the
accuracy, completeness or fairness of the information contained in the
Registration Statement and the Prospectus, except to the extent necessary to
enable us to give the opinion with respect to the Fund in paragraph (viii)
above, on the basis of such participation and review, nothing has come to our
attention that would lead us to believe that the Registration Statement (except
for financial statements, supporting schedules and other financial data included
or incorporated by reference therein or omitted therefrom, as to which we do not
express any belief), at the time such Registration Statement became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus (except for financial statements,
supporting schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which we do not express any
belief), at the time the Prospectus was issued, or at the date hereof, included
or includes an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. In addition,
nothing has come to our attention that would lead us to believe that the
documents included in the General Disclosure Package, other than the financial
statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which we make no statement, as of
the Applicable Time, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. With respect to statements contained in the General Disclosure
Package, any statement contained in any of the constituent documents shall be
deemed to be modified or superseded to the extent that any information contained
in subsequent constituent documents modifies or replaces such statement.
AMR-223237-v5 D-2 80-20710670
