Exhibit (h)(4)
Xxxxx Xxxxx Senior Floating-Rate Trust
Auction Preferred Shares
Par Value $0.01 Per Share
UNDERWRITING AGREEMENT
January [ ], 2004
UNDERWRITING AGREEMENT
January [ ], 2004
UBS Securities LLC
[ ]
as Representatives
c/o UBS Securities LLC
as Managing Representative
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Xxxxx Xxxxx Senior Floating-Rate Trust, a voluntary
association with transferable shares organized and existing under and by virtue
of the laws of The Commonwealth of Massachusetts (commonly referred to as a
Massachusetts business trust) (the "Fund"), proposes to issue and sell to the
underwriters named in Schedule A annexed hereto (the "Underwriters") an
aggregate of [ ] preferred shares of beneficial interest, par value $0.01 per
share, designated Series A Auction Preferred Shares, [ ] preferred shares of
beneficial interest, par value $0.01 per share, designated Series B Auction
Preferred Shares, [ ] preferred shares of beneficial interest, par value $0.01
per share, designated Series C Auction Preferred Shares, and [ ] preferred
shares of beneficial interest, par value $0.01 per share, designated Series D
Auction Preferred Shares, each with a liquidation preference of $25,000 per
share (the "Shares"), of the Fund. The Shares are described in the Prospectus
which is defined below.
The Fund has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively called the "Securities Act"), and with the provisions of the
Investment Company Act of 1940, as amended, and the rules and regulations
thereunder (collectively called the "Investment Company Act"), with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form N-2 (File Nos. 333-[ ] and 811-21411), including a prospectus and a
statement of additional information, relating to the Shares. The Fund has
furnished to the Representatives, for use by the Underwriters and by dealers,
copies of one or more preliminary prospectuses (including a preliminary
statement of additional information) (each thereof, including such preliminary
statement of additional information, being herein called a "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the registration statement, as amended when it becomes effective (the
"Effective Date"), including all documents filed as a part thereof or
incorporated by reference therein, and including any information contained in a
prospectus subsequently filed with the Commission pursuant to Rule 497 under the
Securities Act and deemed to be part of the registration statement at the time
of
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effectiveness pursuant to Rule 430A under the Securities Act is herein called
the "Registration Statement," and the prospectus (including the statement of
additional information), in the form filed by the Fund with the Commission
pursuant to Rule 497 under the Securities Act or, if no such filing is required,
the form of final prospectus (including the form of final statement of
additional information) included in the Registration Statement at the time it
became effective, is herein called the "Prospectus." In addition, the Fund has
filed a Notification of Registration on Form N-8A (the "Notification") pursuant
to Section 8 of the Investment Company Act. UBS Securities LLC ("UBS Securities"
or the "Managing Representative") will act as managing representative for the
Underwriters.
Xxxxx Xxxxx Management, a Massachusetts business trust ("Xxxxx
Xxxxx" or the "Investment Adviser") will act as the Fund's investment adviser
pursuant to an Investment Advisory Agreement by and between the Fund and the
Investment Adviser, dated as of October 20, 2003 (the "Investment Advisory
Agreement"). Investors Bank & Trust Company will act as the custodian (the
"Custodian") of the Fund's cash and portfolio assets pursuant to a Custodian
Agreement, dated as of October 20, 2003 (the "Custodian Agreement"). PFPC Inc.
will act as the Fund's transfer agent, registrar, and dividend disbursing agent
(the "Transfer Agent") pursuant to a Transfer Agency Services Agreement, dated
as of October 20, 2003 (the "Transfer Agency Agreement"). Xxxxx Xxxxx will act
as the administrator of the Fund pursuant to an Administration Agreement, dated
as of October 20, 2003 (the "Administration Agreement"). The Investment Adviser
and UBS Securities LLC have entered into a Shareholder Servicing Agreement dated
November 28, 2003 (the "Shareholder Servicing Agreement"). Deutsche Bank Trust
Company Americas will act as the Fund's auction agent pursuant to an Auction
Agency Agreement, dated as of January [ ], 2004 (the "Auction Agency
Agreement"). The Fund has entered into a Letter Agreement, dated as of January [
], 2004, with the Depository Trust Company (the "DTC Agreement"). In addition,
the Fund has adopted a dividend reinvestment plan (the "Dividend Reinvestment
Plan") pursuant to which holders of Shares may have their dividends
automatically reinvested in additional Common Shares of the Fund if so elected.
The Fund, the Investment Adviser and the Underwriters agree as
follows:
1. SALE AND PURCHASE. Upon the basis of the warranties and representations
and subject to the terms and conditions herein set forth, the Fund
agrees to sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the
Fund the aggregate number of Shares set forth opposite the name of such
Underwriter in Schedule A attached hereto in each case at a purchase
price of $24,750.00 per Share. The Fund is advised that the
Underwriters intend (i) to make a public offering of their respective
portions of the Shares as soon after the effective date of the
Registration Statement as is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus. The Underwriters may
from time to time increase or decrease the public offering price after
the initial public offering to such extent as they may determine.
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2. PAYMENT AND DELIVERY. Payment of the purchase price for the Shares
shall be made by the Underwriters to the Fund by Federal Funds wire
transfer, against delivery of the Shares to you through the facilities
of the Depository Trust Company ("DTC") for the respective accounts of
the Underwriters. Such payment and delivery shall be made at 10:00
A.M., New York City time on the third business day following the date
of this Underwriting Agreement (unless another date or time shall be
agreed to by you and the Fund). The time at which such payment and
delivery are actually made is hereinafter sometimes called the "Time of
Purchase" or the "Closing Date." Certificates for the Shares, if any,
shall be delivered to you in definitive form in such names and in such
denominations as you shall specify on the second business day preceding
the Time of Purchase. For the purpose of expediting the checking of the
certificates for the Shares by you, the Fund agrees to make such
certificates, if any, available to you for such purpose at least one
full business day preceding the Time of Purchase.
3. REPRESENTATIONS AND WARRANTIES OF THE FUND AND THE INVESTMENT ADVISER.
Each of the Fund and the Investment Adviser jointly and severally
represents and warrants to each Underwriter as follows:
(a) On (i) the Effective Date and the date on which the Prospectus
is first filed with the Commission pursuant to Rule 497(b),
(h) or (j) under the Securities Act, as the case may be, (ii)
the date on which any post-effective amendment to the
Registration Statement (except any post-effective amendment
which is filed with the Commission after the later of (x) one
year from the date of this Underwriting Agreement or (y) the
date on which the distribution of the Shares is completed)
became or becomes effective or any amendment or supplement to
the Prospectus was or is filed with the Commission and (iii)
the Closing Dates, the Registration Statement, the Prospectus
and any such amendment or supplement thereto and the
Notification complied or will comply in all material respects
with the requirements of the Securities Act and the Investment
Company Act, as the case may be. On the Effective Date and on
the date that any post-effective amendment to the Registration
Statement (except any post-effective amendment which is filed
with the Commission after the later of (x) one year from the
date of this Underwriting Agreement or (y) the date on which
the distribution of the Shares is completed) became or becomes
effective, neither the Registration Statement nor any such
amendment did or will contain any untrue statement of a
material fact or omit to state a material fact required to be
stated in it or necessary to make the statements in it not
misleading. At the Effective Date and, if applicable, the date
the Prospectus or any amendment or supplement to the
Prospectus was or is filed with the Commission and at the
Closing Dates, the Prospectus did not or will not, as the case
may be, contain any untrue statement of a material fact or
omit to state a material fact required to be stated in it or
necessary to make the statements in it, in light of the
circumstances under which they were made, not misleading. The
foregoing representations in
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this Section 3(a) 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 the Underwriters expressly for use in the Registration
Statement, the Prospectus, or any amendments or supplements
thereto, as described in Section 9(f) hereof.
(b) The Fund has been duly formed, is validly existing as a
business trust under the laws of The Commonwealth of
Massachusetts, with full power and authority to conduct all
the activities conducted by it, to own or lease all assets
owned or leased by it and to conduct its business as described
in the Registration Statement and Prospectus, and the Fund is
duly licensed and qualified to do business and in good
standing in each jurisdiction in which its ownership or
leasing of property or its conducting of business requires
such qualification, except where the failure to be so
qualified or be in good standing would not have a material
adverse effect on the Fund, and the Fund owns, possesses or
has obtained and currently maintains all governmental
licenses, permits, consents, orders, approvals and other
authorizations, whether foreign or domestic, necessary to
carry on its business as contemplated in the Prospectus. The
Fund has no subsidiaries.
(c) The capitalization of the Fund is as set forth in the
Registration Statement and the Prospectus. The Common Shares
conform in all material respects to the description of them in
the Prospectus. All the outstanding Common Shares have been
duly authorized and are validly issued, fully paid and
nonassessable (except as described in the Registration
Statement). The Shares to be issued and delivered to and paid
for by the Underwriters in accordance with this Underwriting
Agreement against payment therefor as provided by this
Underwriting Agreement have been duly authorized and when
issued and delivered to the Underwriters will have been
validly issued and will be fully paid and nonassessable
(except as described in the Registration Statement). No person
is entitled to any preemptive or other similar rights with
respect to the Shares.
(d) The Fund is duly registered with the Commission under the
Investment Company Act as a diversified, closed-end management
investment company, and, subject to the filing of any final
amendment to the Registration Statement (a "Final Amendment"),
if not already filed, all action under the Securities Act and
the Investment Company Act, as the case may be, necessary to
make the public offering and consummate the sale of the Shares
as provided in this Underwriting Agreement has or will have
been taken by the Fund.
(e) The Fund has full power and authority to enter into each of
this Underwriting Agreement, the Investment Advisory
Agreement, the Custodian Agreement, the Transfer Agency
Agreement, the Auction Agency Agreement, the DTC Agreement and
the Dividend Reinvestment Plan (collectively, the "Fund
Agreements") and to perform all of the terms
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and provisions hereof and thereof to be carried out by it and
(i) each Fund Agreement has been duly and validly authorized,
executed and delivered by or on behalf of the Fund, (ii) each
Fund Agreement does not violate in any material respect any of
the applicable provisions of the Investment Company Act or the
Investment Advisers Act of 1940, as amended, and the rules and
regulations thereunder (collectively called the "Advisers
Act"), as the case may be, and (iii) assuming due
authorization, execution and delivery by the other parties
thereto, each Fund Agreement constitutes the legal, valid and
binding obligation of the Fund enforceable in accordance with
its terms, (A) subject, as to enforcement, to applicable
bankruptcy, insolvency and similar laws affecting creditors'
rights generally and to general equitable principles
(regardless of whether enforcement is sought in a proceeding
in equity or at law) and (B) except as rights to indemnity
thereunder may be limited by federal or state securities laws.
(f) None of (i) the execution and delivery by the Fund of the Fund
Agreements, (ii) the issue and sale by the Fund of the Shares
as contemplated by this Underwriting Agreement and (iii) the
performance by the Fund of its obligations under any of the
Fund Agreements or consummation by the Fund of the other
transactions contemplated by the Fund Agreements conflicts
with or will conflict with, or results or will result in a
breach of, the Declaration of Trust of the Fund, as amended
through the date hereof, or the Amended and Restated By-laws
of the Fund, adopted in connection with the issuance of the
Shares and as amended through the date hereof (the "Amended
Bylaws") or any agreement or instrument to which the Fund is a
party or by which the Fund is bound, or any law, rule or
regulation, or order of any court, governmental
instrumentality, securities exchange or association or
arbitrator, whether foreign or domestic, applicable to the
Fund, other than state securities or "blue sky" laws
applicable in connection with the purchase and distribution of
the Shares by the Underwriters pursuant to this Underwriting
Agreement.
(g) The Fund is not currently in breach of, or in default under,
any written agreement or instrument to which it is a party or
by which it or its property is bound or affected.
(h) No person has any right to the registration of any securities
of the Fund because of the filing of the registration
statement.
(i) No consent, approval, authorization or order of any court or
governmental agency or body or securities exchange or
association, whether foreign or domestic, is required by the
Fund for the consummation by the Fund of the transactions to
be performed by the Fund or the performance by the Fund of all
the terms and provisions to be performed by or on behalf of it
in each case as contemplated in the Fund Agreements, except
such as (i)
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have been obtained under the Securities Act, the Investment
Company Act, or the Advisers Act, and (ii) may be required by
the New York Stock Exchange or under state securities or "blue
sky" laws, in connection with the purchase and distribution of
the Shares by the Underwriters pursuant to this Underwriting
Agreement.
(j) The Common Shares are listed on the New York Stock Exchange.
(k) Deloitte & Touche LLP, whose report appears in the Prospectus,
are independent public accountants with respect to the Fund as
required by the Securities Act and the Investment Company Act.
(l) The statement of assets and liabilities included in the
Registration Statement and the Prospectus presents fairly in
all material respects, in accordance with generally accepted
accounting principles in the United States applied on a
consistent basis, the financial position of the Fund as of the
date indicated.
(m) The Fund will maintain a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing
assets through an asset reconciliation procedure or otherwise
at reasonable intervals and appropriate action is taken with
respect to any differences.
(n) Since the date as of which information is given in the
Registration Statement and the Prospectus, except as otherwise
stated therein, (i) there has been no material adverse change
in the condition, financial or otherwise, business affairs or
business of the Fund, whether or not arising in the ordinary
course of business, (ii) there have been no transactions
entered into by the Fund other than those in the ordinary
course of its business and (iii) there has been no dividend or
distribution of any kind declared, paid or made on any class
of its capital shares.
(o) There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other
governmental agency or body, foreign or domestic, now pending,
or, to the knowledge of the Fund, threatened against or
affecting the Fund, which (i) might result in any material
adverse change in the condition, financial or otherwise,
business affairs or business prospects of the Fund or might
materially adversely affect the properties or assets of the
Fund or (ii) is of a character required to be described in the
Registration Statement or the Prospectus; and there are no
contracts, franchises or other documents that are of a
character
7
required to be described in, or that are required to be filed
as exhibits to, the Registration Statement that have not been
described or filed as required.
(p) The Shares have been, or prior to the Closing Date will be,
assigned a rating of "AAA" by Fitch and "Aaa" by Xxxxx'x.
(q) The Fund intends to direct the investment of the proceeds of
the offering of the Shares in such a manner as to comply with
the requirements of Subchapter M of the Internal Revenue Code
of 1986, as amended (the "Code").
(r) To the knowledge of the Fund after due inquiry, no
advertising, sales literature or other promotional materials
(excluding road show slides or road show tapes) were
authorized or prepared by or on behalf of the Fund or the
Investment Adviser or any representative thereof for use in
connection with the public offering or sale of the Shares
(collectively, the "sales materials"); any sales materials and
any road show slides or road show tapes complied and comply in
all material respects with the applicable requirements of the
Securities Act and the rules and interpretations of the
National Association of Securities Dealers, Inc.; and no
broker kits, road show slides, road show tapes or sales
materials authorized or prepared by the Fund or authorized or
prepared on behalf of the Fund by the Investment Adviser or
any representative thereof for use in connection with the
public offering or sale of the Shares contained or contains
any untrue statement of a material fact or omitted or omits to
state any material fact required to be stated therein or
necessary in order to make the statements therein not
misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTMENT ADVISER. The
Investment Adviser represents to each Underwriter as follows:
(a) The Investment Adviser has been duly formed, is validly
existing as a business trust under the laws of The
Commonwealth of Massachusetts with full power and authority to
conduct all of the activities conducted by it, to own or lease
all of the assets owned or leased by it and to conduct its
business as described in the Registration Statement and
Prospectus, and the Investment Adviser is duly licensed and
qualified to do business and in good standing in each
jurisdiction in which it is required to be so qualified,
except to the extent that failure to be so qualified or be in
good standing would not have a material adverse affect on the
Investment Adviser's ability to provide services to the Fund;
and the Investment Adviser owns, possesses or has obtained and
currently maintains all governmental licenses, permits,
consents, orders, approvals and other authorizations, whether
foreign or domestic, necessary to carry on its business as
contemplated in the Registration Statement and the Prospectus.
8
(b) The Investment Adviser is (i) duly registered as an investment
adviser under the Advisers Act and (ii) not prohibited by the
Advisers Act or the Investment Company Act from acting as the
investment adviser for the Fund as contemplated by the
Investment Advisory Agreement, the Registration Statement and
the Prospectus.
(c) The Investment Adviser has full power and authority to enter
into each of this Underwriting Agreement, the Investment
Advisory Agreement, the Administration Agreement, and the
Shareholder Servicing Agreement (collectively, the "Investment
Adviser Agreements") and to carry out all the terms and
provisions hereof and thereof to be carried out by it; and
each Investment Adviser Agreement has been duly and validly
authorized, executed and delivered by the Investment Adviser;
none of the Investment Adviser Agreements violate in any
material respect any of the applicable provisions of the
Investment Company Act or the Advisers Act; and assuming due
authorization, execution and delivery by the other parties
thereto, each Investment Adviser Agreement constitutes a
legal, valid and binding obligation of the Investment Adviser,
enforceable in accordance with its terms, (i) subject, as to
enforcement, to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and to general
equitable principles (regardless of whether enforcement is
sought in a proceeding in equity or at law) and (ii) except as
rights to indemnity thereunder may be limited by federal or
state securities laws.
(d) Neither (i) the execution and delivery by the Investment
Adviser of any Investment Adviser Agreement nor (ii) the
consummation by the Investment Adviser of the transactions
contemplated by, or the performance of its obligations under
any Investment Adviser Agreement conflicts or will conflict
with, or results or will result in a breach of, the
Declaration of Trust or By-Laws of the Investment Adviser or
any agreement or instrument to which the Investment Adviser is
a party or by which the Investment Adviser is bound, or any
law, rule or regulation, or order of any court, governmental
instrumentality, securities exchange or association or
arbitrator, whether foreign or domestic, applicable to the
Investment Adviser.
(e) No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or
association, whether foreign or domestic, is required for the
consummation of the transactions contemplated in, or the
performance by the Investment Adviser of its obligations
under, any Investment Adviser Agreement, as the case may be,
except such as (i) have been obtained under the Act, the
Investment Company Act, or the Advisers Act, and (ii) may be
required by the New York Stock Exchange or under state
securities or "blue sky" laws, in connection with the purchase
and distribution of the Shares by the Underwriters pursuant to
this Underwriting Agreement.
9
(f) The description of the Investment Adviser and its business and
the statements attributable to the Investment Adviser in the
Registration Statement and the Prospectus comply with the
requirements of the Act and the Investment Company Act 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 not
misleading.
(g) There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other
governmental agency or body, foreign or domestic, now pending
or, to the knowledge of the Investment Adviser, threatened
against or affecting the Investment Adviser of a nature
required to be disclosed in the Registration Statement or
Prospectus or that might reasonably be expected to result in
any material adverse change in the condition, financial or
otherwise, business affairs or business prospects of the
Investment Adviser or the ability of the Investment Adviser to
fulfill its respective obligations under any Investment
Adviser Agreement.
(h) In the event that the Fund or the Investment Adviser makes
available any promotional materials (other than the sales
materials) intended for use only by qualified broker-dealers
and registered representatives thereof by means of an Internet
web site or similar electronic means, the Investment Adviser
will install and maintain pre-qualification and
password-protection or similar procedures which will
effectively prohibit access to such promotional materials by
persons other than qualified broker-dealers and registered
representatives thereof.
5. AGREEMENTS OF THE PARTIES.
(a) If the registration statement relating to the Shares has not
yet become effective, the Fund will promptly file a Final
Amendment, if not previously filed, with the Commission, and
will use its best efforts to cause such registration statement
to become effective and, as soon as the Fund is advised, will
advise the Managing Representative when the Registration
Statement or any amendment thereto has become effective. If
the Registration Statement has become effective and the
Prospectus contained therein omits certain information at the
time of effectiveness pursuant to Rule 430A under the Act, the
Fund will file a 430A Prospectus pursuant to Rule 497(h) under
the Act as promptly as practicable, but no later than the
second business day following the earlier of the date of the
determination of the offering price of the Shares or the date
the Prospectus is first used after the Effective Date. If the
Registration Statement has become effective and the Prospectus
contained therein does not so omit such information, the Fund
will file a Prospectus pursuant to Rule 497(b) or a
certification pursuant to Rule 497(j) under the Act as
promptly as practicable, but no later than the fifth business
day following the date of the later of the Effective Date or
the commencement of the public offering
10
of the Shares after the Effective Date. In either case, the
Fund will provide the Managing Representative satisfactory
evidence of the filing. The Fund will not file with the
Commission any Prospectus or any other amendment (except any
post-effective amendment which is filed with the Commission
after the later of (x) one year from the date of this
Underwriting Agreement or (y) the date on which distribution
of the Shares is completed) or supplement to the Registration
Statement or the Prospectus unless a copy has first been
submitted to the Managing Representative a reasonable time
before its filing and the Managing Representative has not
objected to it in writing within a reasonable time after
receiving the copy.
(b) For the period of three years from the date hereof, the Fund
will advise the Managing Representative promptly (i) of the
issuance by the Commission of any order in respect of the Fund
or the Investment Adviser which relates to the Fund, or which
relates to any material arrangements or proposed material
arrangements involving the Fund or the Investment Adviser,
(ii) of the initiation or threatening of any proceedings for,
or receipt by the Fund of any notice with respect to, any
suspension of the qualification of the Shares for sale in any
jurisdiction or the issuance of any order by the Commission
suspending the effectiveness of the Registration Statement,
(iii) of receipt by the Fund, or any representative or
attorney of the Fund, of any other communication from the
Commission relating in any material way to the Fund, the
Registration Statement, the Notification, any Preliminary
Prospectus, the Prospectus or to the transactions contemplated
by this Underwriting Agreement and (iv) the issuance by any
court, regulatory body, administrative agency or other
governmental agency or body, whether foreign or domestic, of
any order, ruling or decree, or the threat to initiate any
proceedings with respect thereto, regarding the Fund, which
relates in any material way to the Fund or any material
arrangements or proposed material arrangements involving the
Fund. The Fund will make every reasonable effort to prevent
the issuance of any order suspending the effectiveness of the
Registration Statement and, if any such order is issued, to
obtain its lifting as soon as possible.
(c) If not delivered prior to the date of this Underwriting
Agreement, the Fund will deliver to the Managing
Representative, without charge, a signed copy of the
Registration Statement and the Notification and of any
amendments (except any post-effective amendment which is filed
with the Commission after the later of (x) one year from the
date of this Underwriting Agreement or (y) the date on which
the distribution of the Shares is completed) to either the
Registration Statement or the Notification (including all
exhibits filed with any such document) and as many conformed
copies of the Registration Statement and any amendments
thereto (except any post-effective amendment which is filed
with the Commission after the later of (x) one year from the
date of this
11
Underwriting Agreement or (y) the date on which the
distribution of the Shares is completed) (excluding exhibits)
as the Managing Representative may reasonably request.
(d) During such period as a prospectus is required by law to be
delivered by an underwriter or a dealer, the Fund will
deliver, without charge, to the Representatives, the
Underwriters and any dealers, at such office or offices as the
Representatives may designate, as many copies of the
Prospectus as the Representatives may reasonably request, and,
if any event occurs during such period as a result of which it
is necessary to amend or supplement the Prospectus, in order
to make the statements therein, in light of the circumstances
under which they were made, not misleading in any material
respect, or if during such period it is necessary to amend or
supplement the Prospectus to comply with the Act or the
Investment Company Act, the Fund promptly will prepare, submit
to the Managing Representative, file with the Commission and
deliver, without charge, to the Underwriters and to dealers
(whose names and addresses the Managing Representative will
furnish to the Fund) to whom Shares may have been sold by the
Underwriters, and to other dealers on request, amendments or
supplements to the Prospectus so that the statements in such
Prospectus, as so amended or supplemented, will not, in light
of the circumstances under which they were made, be misleading
in any material respect and will comply with the Act and the
Investment Company Act. Delivery by the Underwriters of any
such amendments or supplements to the Prospectus will not
constitute a waiver of any of the conditions in Section 6
hereof.
(e) The Fund will make generally available to holders of the
Fund's securities, as soon as practicable but in no event
later than the last day of the 18th full calendar month
following the calendar quarter in which the Effective Date
falls, an earnings statement, if applicable, satisfying the
provisions of the last paragraph of Section 11(a) of the Act
and, at the option of the Fund, Rule 158 under the Securities
Act.
(f) The Fund will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Fund's counsel and
accountants in connection with the registration of the Shares
and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of
printing or reproducing this Underwriting Agreement and any
other documents in connection with the offering, purchase,
sale and delivery of the Shares (including advertising
expenses of the Underwriters, if any); (iii) the cost of
preparing share certificates; (iv) the expenses (including,
but not limited to, travel, hotels and other accommodations)
incurred by the Trust's or the Investment Adviser's directors,
officers, employees and other personnel in
12
connection with meetings held with registered brokers in
connection with the offering of the Shares, the preparing to
market and the marketing of the Shares; (v) any fees charged
by securities rating services for rating the Shares; (vi) the
fees and expenses of the Depository Trust Company and its
nominee, the Custodian and the Auction Agent; and (vii) all
other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically
provided for. It is understood, however, that, except as
provided in this Section 5 and Section 8 hereof, the
Underwriters will pay all of their own costs and expenses,
including the fees of their counsel and stock transfer taxes,
if any, on resale of any of the Shares by them, except any
advertising expenses connected with any offers they may make.
(g) If the transactions contemplated by this Underwriting
Agreement are not consummated, except as otherwise provided
herein, no party will be under any liability to any other
party, except that (i) if this Underwriting Agreement is
terminated by (x) the Fund or the Investment Adviser pursuant
to any of the provisions hereof or (y) by the Representatives
or the Underwriters because of any inability, failure or
refusal on the part of the Fund or the Investment Adviser to
comply with any material terms or because any of the
conditions in Section 6 are not satisfied, the Investment
Adviser or an affiliate and the Fund, jointly and severally,
will reimburse the Underwriters for all out-of-pocket expenses
(including the reasonable fees, disbursements and other
charges of their counsel) reasonably incurred by them in
connection with the proposed purchase and sale of the Shares
and (ii) no Underwriter who has failed or refused to purchase
the Shares agreed to be purchased by it under this
Underwriting Agreement, in breach of its obligations pursuant
to this Underwriting Agreement, will be relieved of liability
to the Fund, the Investment Adviser and the other Underwriters
for damages occasioned by its default.
(h) Without the prior written consent of the Managing
Representative, the Fund will not offer, sell or register with
the Commission, or announce an offering of, any equity
securities of the Fund, within 180 days after the Effective
Date, except for the Shares as described in the Prospectus and
any issuances of Common Shares pursuant to the Dividend
Reinvestment Plan.
(i) The Fund will direct the investment of the net proceeds of the
offering of the Shares in such a manner as to comply with the
investment objective and policies of the Fund as described in
the Prospectus.
(j) No later than the Closing Date, the Underwriters will provide,
and will cause any selling group member to whom they have sold
Shares to provide, the Auction Agent with a list of the record
names of the persons to whom they have sold Shares, the number
of Shares sold to each such person, and the number of Shares
they are holding as of the Closing Date;
13
provided that in lieu of thereof, an Underwriter may provide
the Auction Agent with a list indicating itself as the sole
holder of all the Shares sold by such Underwriter.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase the Shares are subject to the accuracy on the
date of this Underwriting Agreement, and on the Closing Date, of the
representations of the Fund and the Investment Adviser in this
Underwriting Agreement, to the accuracy and completeness of all
material statements made by the Fund or the Investment Adviser or any
of their respective officers in any certificate delivered to the
Managing Representative or its counsel pursuant to this Underwriting
Agreement, to performance by the Fund and the Investment Adviser of
their respective obligations under this Underwriting Agreement and to
each of the following additional conditions:
(a) The Registration Statement must have become effective by 5:30
p.m., New York City time, on the date of this Underwriting
Agreement or such later date and time as the Managing
Representative consents to in writing. The Prospectus must
have been filed in accordance with Rule 497(b) or (h) or a
certificate must have been filed in accordance with Rule
497(j), as the case may be, under the Securities Act.
(b) No order suspending the effectiveness of the Registration
Statement may be in effect and no proceedings for such purpose
may be pending before or, to the knowledge of counsel to the
Underwriters, threatened by the Commission, and any requests
for additional information on the part of the Commission (to
be included in the Registration Statement or the Prospectus or
otherwise) must be complied with or waived to the reasonable
satisfaction of the Managing Representative.
(c) Since the dates as of which information is given in the
Registration Statement and the Prospectus, (i) there must not
have been any material change in the Common Shares, the Shares
or the liabilities of the Fund except as set forth in or
contemplated by the Prospectus; (ii) there must not have been
any material adverse change in the general affairs, prospects,
management, business, financial condition or results of
operations of the Fund or the Investment Adviser whether or
not arising from transactions in the ordinary course of
business as set forth in or contemplated by the Prospectus
which in the opinion of the Managing Representative would
materially adversely affect the market for the Shares; (iii)
the Fund must not have sustained any material loss or
interference with its business from any court or from
legislative or other governmental action, order or decree,
whether foreign or domestic, or from any other occurrence not
described in the Registration Statement and Prospectus; and
(iv) there must not have occurred any event that makes untrue
or incorrect in any material respect any statement or
information contained in the Registration Statement or
Prospectus or that is not
14
reflected in the Registration Statement or Prospectus but
should be reflected therein in order to make the statements or
information therein (in the case of the Prospectus, in light
of the circumstances in which they were made) not misleading
in any material respect; if, in the judgment of the Managing
Representative, any such development referred to in clause
(i), (ii), (iii), or (iv) of this paragraph (c) makes it
impracticable or inadvisable to consummate the sale and
delivery of the Shares pursuant to this Underwriting Agreement
by the Underwriters, at the initial public offering price of
the Shares.
(d) The Managing Representative must have received on the Closing
Date a certificate, dated such date, of the President or a
Vice-President and the chief financial or accounting officer
of each of the Fund and the Investment Adviser certifying that
(i) the signers have carefully examined the Registration
Statement, the Prospectus, and this Underwriting Agreement,
(ii) the representations of the Fund (with respect to the
certificates from such Fund officers) and the representations
of the Investment Adviser (with respect to the certificates
from such officers of the Investment Adviser) in this
Underwriting Agreement are accurate on and as of the date of
the certificate, (iii) there has not been any material adverse
change in the general affairs, prospects, management,
business, financial condition or results of operations of the
Fund (with respect to the certificates from such Fund
officers) or the Investment Adviser (with respect to the
certificates from such officers of the Investment Adviser),
which change would materially and adversely affect the ability
of the Fund or the Investment Adviser, as the case may be, to
fulfill its obligations under this Underwriting Agreement or
the Investment Advisory Agreement, whether or not arising from
transactions in the ordinary course of business, (iv) with
respect to the Fund only, to the knowledge of such officers
after reasonable investigation, no order suspending the
effectiveness of the Registration Statement, prohibiting the
sale of any of the Shares or otherwise having a material
adverse effect on the Fund has been issued and no proceedings
for any such purpose are pending before or threatened by the
Commission or any other regulatory body, whether foreign or
domestic, (v) to the knowledge of the officers of the
Investment Adviser, after reasonable investigation, no order
having a material adverse effect on the ability of the
Investment Adviser to fulfill its obligations under this
Underwriting Agreement or the Investment Advisory Agreement,
as the case may be, has been issued and no proceedings for any
such purpose are pending before or threatened by the
Commission or any other regulatory body, whether foreign or
domestic, and (vi) each of the Fund (with respect to the
certificates from such Fund officers) and the Investment
Adviser (with respect to the certificates from such officers
of the Investment Adviser) has performed all of its respective
agreements that this Underwriting Agreement requires it to
perform by such Closing Date (to the extent not waived in
writing by the Managing Representative).
15
(e) The Managing Representative must have received on the Closing
Date the opinions dated such Closing Date substantially in the
form of Schedules B and C to this Underwriting Agreement from
the counsel identified in each such Schedules.
(f) The Managing Representative must have received on the Closing
Date from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP and its
affiliated entities an opinion dated such Closing Date with
respect to the Fund, the Shares, the Registration Statement
and the Prospectus, this Underwriting Agreement and the form
and sufficiency of all proceedings taken in connection with
the sale and delivery of the Shares. Such opinion and
proceedings shall fulfill the requirements of this Section
6(f) only if such opinion and proceedings are satisfactory in
all respects to the Managing Representative. The Fund and the
Investment Adviser must have furnished to such counsel such
documents as counsel may reasonably request for the purpose of
enabling them to render such opinion.
(g) The Managing Representative must have received on the date
this Underwriting Agreement is signed and delivered by you a
signed letter, dated such date, substantially in the form of
Schedule D to this Underwriting Agreement from the firm of
accountants designated in such Schedule. The Managing
Representative also must have received on each Closing Date a
signed letter from such accountants, dated as of such Closing
Date, confirming on the basis of a review in accordance with
the procedures set forth in their earlier letter that nothing
has come to their attention during the period from a date not
more than five business days before the date of this
Underwriting Agreement, specified in the letter, to a date not
more than five business days before such Closing Date, that
would require any change in their letter referred to in the
foregoing sentence.
(h) The Shares shall have been accorded a rating of "AAA" by Fitch
and "Aaa" by Xxxxx'x, and a letter to such effect, dated on or
before the Closing Date, shall have been delivered to the
Managing Representative.
(i) As of the Closing Date, and assuming the receipt of the net
proceeds from the sale of the Shares, the 1940 Act APS Asset
Coverage and the APS Basic Maintenance Amount (each as defined
in the Prospectus) each will be met.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Underwriting Agreement will comply only if
they are in form and scope reasonably satisfactory to counsel for the
Underwriters, provided that any such documents, forms of which are
annexed hereto, shall be deemed satisfactory to such counsel if
substantially in such form.
16
7. TERMINATION. This Underwriting Agreement may be terminated by the
Managing Representative by notifying the Fund at any time:
(a) before the later of the effectiveness of the Registration
Statement and the time when any of the Shares are first
generally offered pursuant to this Underwriting Agreement by
the Managing Representative to dealers by letter or telegram;
(b) at or before the Closing Date if, in the sole judgment of the
Managing Representative, payment for and delivery of the
Shares is rendered impracticable or inadvisable because (i)
trading in the equity securities of the Fund is suspended by
the Commission or by the principal exchange that lists the
Common Shares, (ii) trading in securities generally on the New
York Stock Exchange or the Nasdaq Stock Market shall have been
suspended or limited or minimum or maximum prices shall have
been generally established on such exchange or
over-the-counter market, (iii) additional material
governmental restrictions, not in force on the date of this
Underwriting Agreement, have been imposed upon trading in
securities or trading has been suspended on any U.S.
securities exchange, (iv) a general banking moratorium has
been established by U.S. federal or New York authorities or
(v) any material adverse change in the financial or securities
markets in the United States or in political, financial or
economic conditions in the United States or any outbreak or
material escalation of hostilities or declaration by the
United States of a national emergency or war or other calamity
or crisis shall have occurred the effect of any of which is
such as to make it, in the sole judgment of the Managing
Representative, impracticable or inadvisable to market the
Shares on the terms and in the manner contemplated by the
Prospectus; or
(c) at or before the Closing Date, if any of the conditions
specified in Section 6 have not been fulfilled when and as
required by this Underwriting Agreement.
8. SUBSTITUTION OF UNDERWRITERS. If one or more of the Underwriters fails
(other than for a reason sufficient to justify the termination of this
Underwriting Agreement) to purchase on the Closing Date the Shares
agreed to be purchased on the Closing Date by such Underwriter or
Underwriters, the Managing Representative may find one or more
substitute underwriters to purchase such Shares or make such other
arrangements as the Managing Representative deems advisable, or one or
more of the remaining Underwriters may agree to purchase such Shares in
such proportions as may be approved by the Managing Representative, in
each case upon the terms set forth in this Underwriting Agreement. If
no such arrangements have been made within 36 hours after the Closing
Date, and
(a) the number of Shares to be purchased by the defaulting
Underwriters on the Closing Date does not exceed 10% of the
Shares that the Underwriters
17
are obligated to purchase on the Closing Date, each of the
nondefaulting Underwriters will be obligated to purchase such
Shares on the terms set forth in this Underwriting Agreement
in proportion to their respective obligations under this
Underwriting Agreement, or
(b) the number of Shares to be purchased by the defaulting
Underwriters on the Closing Date exceeds 10% of the Shares to
be purchased by all the Underwriters on such Closing Date, the
Fund will be entitled to an additional period of 24 hours
within which to find one or more substitute underwriters
reasonably satisfactory to the Managing Representative to
purchase such Shares on the terms set forth in this
Underwriting Agreement.
Upon the occurrence of the circumstances described in the
foregoing paragraph (b), either the Managing Representative or the Fund
will have the right to postpone the Closing Date for not more than five
business days in order that necessary changes and arrangements
(including any necessary amendments or supplements to the Registration
Statement or the Prospectus) may be effected by the Managing
Representative and the Fund. If the number of Shares to be purchased on
the Closing Date by such defaulting Underwriter or Underwriters exceeds
10% of the Shares that the Underwriters are obligated to purchase on
the Closing Date, and none of the nondefaulting Underwriters or the
Fund makes arrangements pursuant to this Section within the period
stated for the purchase of the Shares that the defaulting Underwriters
agreed to purchase, this Underwriting Agreement will terminate without
liability on the part of any nondefaulting Underwriter, the Fund, or
the Investment Adviser, except as provided in Sections 5(g) and 9
hereof. Any action taken under this Section will not affect the
liability of any defaulting Underwriter to the Fund or the Investment
Adviser or to any nondefaulting Underwriters arising out of such
default. A substitute underwriter will become an Underwriter for all
purposes of this Underwriting Agreement.
9. INDEMNITY AND CONTRIBUTION.
(a) Each of the Fund and the Investment Adviser, jointly and
severally, agrees to indemnify, defend and hold harmless each
Underwriter, its partners, directors and officers, and any
person who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange
Act, and their successors and assigns of all of the foregoing
persons from and against any loss, damage, expense, liability
or claim (including the reasonable cost of investigation)
which, jointly or severally, any such Underwriter or any such
person may incur under the Securities Act, the Exchange Act,
the Investment Company Act, the Advisers Act, the common law
or otherwise, insofar as such loss, damage, expense, liability
or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in
the Registration Statement (or in the Registration Statement
as amended by any post-effective amendment thereof by the
Fund) or in a Prospectus (the term
18
"Prospectus" for the purpose of this Section 9 being deemed to
include any Preliminary Prospectus, the sales materials, the
Prospectus and the Prospectus as amended or supplemented by
the Fund), or arises out of or is based upon any omission or
alleged omission to state a material fact required to be
stated in either such Registration Statement or Prospectus or
necessary to make the statements made therein (with respect to
the Prospectus, in light of the circumstances under which they
were made) not misleading, except insofar as any such loss,
damage, expense, liability or claim arises out of or is based
upon any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information
furnished in writing by or on behalf of any Underwriter to the
Fund or the Investment Adviser expressly for use with
reference to any Underwriter in such Registration Statement or
such Prospectus or arises out of or is based upon any omission
or alleged omission to state a material fact in connection
with such information required to be stated in such
Registration Statement or such Prospectus or necessary to make
such information (with respect to the Prospectus, in light of
the circumstances under which they were made) not misleading,
provided, however, that the indemnity agreement contained in
this subsection (a) with respect to any Preliminary Prospectus
or amended Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting
any such loss, damage, expense, liability or claim purchased
the Shares which is the subject thereof if the Prospectus
corrected any such alleged untrue statement or omission and if
such Underwriter failed to send or give a copy of the
Prospectus to such person at or prior to the written
confirmation of the sale of such Shares to such person, unless
the failure is the result of noncompliance by the Fund with
Section 5(d) hereof.
If any action, suit or proceeding (together, a
"Proceeding") is brought against an Underwriter or any such
person in respect of which indemnity may be sought against the
Fund or the Investment Adviser pursuant to the foregoing
paragraph, such Underwriter or such person shall promptly
notify the Fund and the Investment Adviser in writing of the
institution of such Proceeding and the Fund or the Investment
Adviser shall assume the defense of such Proceeding, including
the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses;
provided, however, that the omission to so notify the Fund or
the Investment Adviser shall not relieve the Fund or the
Investment Adviser from any liability which the Fund or the
Investment Adviser may have to any Underwriter or any such
person or otherwise. Such Underwriter or such person shall
have the right to employ its or their own counsel in any such
case, but the reasonable fees and expenses of such counsel
shall be at the expense of such Underwriter or of such person
unless the employment of such counsel shall have been
authorized in writing by the Fund or the Investment Adviser,
as the case may be, in connection with the defense of such
Proceeding or the Fund or the
19
Investment Adviser shall not have, within a reasonable period
of time in light of the circumstances, employed counsel to
have charge of the defense of such Proceeding or such
indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are
different from, additional to or in conflict with those
available to the Fund or the Investment Adviser (in which case
the Fund or the Investment Adviser shall not have the right to
direct the defense of such Proceeding on behalf of the
indemnified party or parties), in any of which events such
reasonable fees and expenses shall be borne by the Fund or the
Investment Adviser and paid as incurred (it being understood,
however, that the Fund or the Investment Adviser shall not be
liable for the expenses of more than one separate counsel (in
addition to any local counsel) in any one Proceeding or series
of related Proceedings in the same jurisdiction representing
the indemnified parties who are parties to such Proceeding).
Neither the Fund nor the Investment Adviser shall be liable
for any settlement of any Proceeding effected without its
written consent but if settled with the written consent of the
Fund or the Investment Adviser, the Fund or the Investment
Adviser, as the case may be, agrees to indemnify and hold
harmless any Underwriter and any such person from and against
any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, 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 as contemplated by the second sentence of
this paragraph, then the indemnifying party agrees that it
shall be liable for any settlement of any Proceeding effected
without its written consent if (i) such settlement is entered
into more than 60 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of
such settlement and (iii) such indemnified party shall have
given the indemnifying party at least 30 days' prior notice of
its intention to settle. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any
settlement of any pending or threatened Proceeding in respect
of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matter of such
Proceeding and does not include an admission of fault,
culpability or a failure to act, by or on behalf of such
indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Fund and the Investment Adviser, and each of
their respective shareholders, partners, managers, members,
trustees, directors and officers, and any person who controls
the Fund or the Investment Adviser within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange
Act, and the successors and assigns of all of the foregoing
20
persons from and against any loss, damage, expense, liability
or claim (including the reasonable cost of investigation)
which, jointly or severally, the Fund or the Investment
Adviser or any such person may incur under the Securities Act,
the Exchange Act, the Investment Company Act, the Advisers
Act, the common law or otherwise, insofar as such loss,
damage, expense, liability or claim arises out of or is based
upon any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information
furnished in writing by or on behalf of such Underwriter to
the Fund or the Investment Adviser expressly for use with
reference to such Underwriter in the Registration Statement
(or in the Registration Statement as amended by any
post-effective amendment thereof by the Fund) or in a
Prospectus, or arises out of or is based upon any omission or
alleged omission to state a material fact in connection with
such information required to be stated in such Registration
Statement or such Prospectus or necessary to make such
information not misleading (with respect to the Prospectus, in
light of the circumstances under which they were made).
If any Proceeding is brought against the Fund, the
Investment Adviser or any such person in respect of which
indemnity may be sought against any Underwriter pursuant to
the foregoing paragraph, the Fund, the Investment Adviser or
such person shall promptly notify such Underwriter in writing
of the institution of such Proceeding and such Underwriter
shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses;
provided, however, that the omission to so notify such
Underwriter shall not relieve such Underwriter from any
liability which such Underwriter may have to the Fund, the
Investment Adviser or any such person or otherwise. The Fund,
the Investment Adviser or such person shall have the right to
employ its own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of the Fund,
the Investment Adviser or such person, as the case may be,
unless the employment of such counsel shall have been
authorized in writing by such Underwriter in connection with
the defense of such Proceeding or such Underwriter shall not
have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense
of such Proceeding or such indemnified party or parties shall
have reasonably concluded that there may be defenses available
to it or them which are different from or additional to or in
conflict with those available to such Underwriter (in which
case such Underwriter shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party
or parties, but such Underwriter may employ counsel and
participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such Underwriter),
in any of which events such fees and expenses shall be borne
by such Underwriter and paid as incurred (it being understood,
however, that such Underwriter shall not be liable for the
expenses of more than one separate counsel (in addition to any
local
21
counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). No
Underwriter shall be liable for any settlement of any such
Proceeding effected without the written consent of such
Underwriter but if settled with the written consent of such
Underwriter, such Underwriter agrees to indemnify and hold
harmless the Fund, the Investment Adviser and any such person
from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without
its written consent if (i) such settlement is entered into
more than 60 business days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement and
(iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are
the subject matter of such Proceeding and does not include an
admission of fault, culpability or a failure to act, by or on
behalf of such indemnified party.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and
(b) of this Section 9 in respect of any losses, damages,
expenses, liabilities or claims referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
damages, expenses, liabilities or claims (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Fund and the Investment Adviser on the one
hand and the Underwriters on the other hand from the offering
of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of
the Fund and the Investment Adviser on the one hand and of the
Underwriters on the other in connection with the statements or
omissions which resulted in such losses, damages, expenses,
liabilities or claims, as well as any other relevant equitable
considerations. The relative benefits received by the Fund and
the Investment Adviser on the one hand and the Underwriters on
the other shall be deemed to be in the same respective
proportions as the total proceeds from the offering (net of
underwriting
22
discounts and commissions but before deducting expenses)
received by the Fund and the total underwriting discounts and
commissions received by the Underwriters, bear to the
aggregate public offering price of the Shares. The relative
fault of the Fund and the Investment Adviser on the one hand
and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue statement
or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Fund
or the Investment Adviser or by the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to
in this subsection shall be deemed to include any legal or
other fees or expenses reasonably incurred by such party in
connection with investigating, preparing to defend or
defending any Proceeding.
(d) The Fund, the Investment Adviser and the Underwriters agree
that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations
referred to in subsection (c) above. Notwithstanding the
provisions of this Section 9, no Underwriter shall be required
to contribute any amount in excess of the fees and commissions
received by such Underwriter. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to their respective
underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this
Section 9 and the covenants, warranties and representations of
the Fund contained in this Agreement shall remain in full
force and effect regardless of any investigation made by or on
behalf of any Underwriter, its partners, directors or officers
or any person (including each partner, officer or director of
such person) who controls any Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the
Exchange Act, or by or on behalf of the Fund or the Investment
Adviser, its shareholders, partners, Advisers, members,
trustees, directors or officers or any person who controls the
Fund or the Investment Adviser within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act,
and shall survive any termination of this Agreement or the
issuance and delivery of the Shares. The Fund and the
Investment Adviser and each Underwriter agree promptly to
notify each other of the commencement of any Proceeding
against it and, in the case of the Fund or the Investment
Adviser, against any of the Fund's or the Investment Adviser's
23
shareholders, partners, managers, members, trustees, directors
or officers in connection with the issuance and sale of the
Shares, or in connection with the Registration Statement or
Prospectus.
(f) The Fund and the Investment Adviser each acknowledge that the
statements with respect to (1) the public offering of the
Shares as set forth on the cover page of and (2) stabilization
and selling concessions and reallowances of selling
concessions and payment of fees to Underwriters that meet
certain minimum sales thresholds under the caption
"Underwriting" in the Prospectus constitute the only
information furnished in writing to the Fund by the
Underwriters expressly for use in such document. The
Underwriters severally confirm that these statements are
correct in all material respects and were so furnished by or
on behalf of the Underwriters severally for use in the
Prospectus.
(g) Notwithstanding any other provisions in this Section 9, no
party shall be entitled to indemnification or contribution
under this Underwriting Agreement against any loss, claim,
liability, expense or damage arising by reason of such
person's willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties in the performance of its
duties hereunder.
10. NOTICES. Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or
sent to UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000,
Attention: Syndicate Department and, if to the Fund or the Investment
Adviser, shall be sufficient in all respects if delivered or sent to
the Fund or the Investment Adviser, as the case may be, at the offices
of the Fund or the Investment Adviser at Xxxxx Xxxxx Management, 000
Xxxxx Xxxxxx, Xxxxxx, XX 00000.
11. GOVERNING LAW; CONSTRUCTION. This Agreement and any claim, counterclaim
or dispute of any kind or nature whatsoever arising out of or in any
way relating to this Agreement ("Claim"), directly or indirectly, shall
be governed by, and construed in accordance with, the laws of the State
of New York. The Section headings in this Agreement have been inserted
as a matter of convenience of reference and are not a part of this
Agreement.
12. SUBMISSION TO JURISDICTION. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts
of the State of New York located in the City and County of New York or
in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of
such matters, and the Fund and UBS Securities each consent to the
jurisdiction of such courts and personal service with respect thereto.
The Fund and UBS Securities hereby consent to personal jurisdiction,
service and venue in any court in which any Claim arising out of or in
any way relating to this Agreement is brought by any third party
against UBS Securities or any indemnified party. Each of UBS
Securities, the Fund (on its
24
behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) and the Investment Adviser (on its behalf
and, to the extent permitted by applicable law, on behalf of its
unitholders and affiliates) waives all right to trial by jury in any
action, proceeding or counterclaim (whether based upon contract, tort
or otherwise) in any way arising out of or relating to this Agreement.
Each of the Fund and the Investment Adviser agrees that a final
judgment in any such action, proceeding or counterclaim brought in any
such court shall be conclusive and binding upon the Fund and the
Investment Adviser, as the case may be, and may be enforced in any
other courts in the jurisdiction of which the Fund or the Investment
Adviser, as the case may be, is or may be subject, by suit upon such
judgment.
13. PARTIES AT INTEREST. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Fund and the
Investment Adviser and to the extent provided in Section 9 hereof the
controlling persons, shareholders, partners, members, trustees,
managers, directors and officers referred to in such section, and their
respective successors, assigns, heirs, personal representatives and
executors and administrators. No other person, partnership, association
or corporation (including a purchaser, as such purchaser, from any of
the Underwriters) shall acquire or have any right under or by virtue of
this Agreement.
14. COUNTERPARTS. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same
agreement among the parties.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Underwriters, the Fund and the Investment Adviser, and any successor or
assign of any substantial portion of the Fund's, the Investment
Adviser's, or any of the Underwriters' respective businesses and/or
assets.
16. DISCLAIMER OF LIABILITY OF TRUSTEES AND BENEFICIARIES. A copy of the
Agreement and Declaration of Trust of the Fund and Xxxxx Xxxxx is on
file with the Secretary of State of The Commonwealth of Massachusetts,
and notice hereby is given that this Underwriting Agreement is executed
on behalf of the Fund and Xxxxx Xxxxx, respectively, by an officer or
Trustee of the Fund or Xxxxx Xxxxx, as the case may be, in his or her
capacity as an officer or Trustee of the Fund and not individually and
that the obligations under or arising out of this Underwriting
Agreement are not binding upon any of the Trustees, officers or
shareholders individually but are binding only upon the assets and
properties of the Fund or Xxxxx Xxxxx, as the case may be.
25
If the foregoing correctly sets forth the understanding among
the Fund, the Investment Adviser and the Underwriters, please so indicate in the
space provided below, whereupon this letter and your acceptance shall constitute
a binding agreement among the Fund, the Investment Adviser and the Underwriters,
severally.
Very truly yours,
XXXXX XXXXX SENIOR FLOATING-
RATE TRUST
___________________________
By:
Title:
XXXXX XXXXX MANAGEMENT
___________________________
By:
Title:
26
Accepted and agreed to as of the
date first above written, on behalf of
themselves and the other several
Underwriters named in Schedule A
UBS SECURITIES LLC
[ ]
By: UBS SECURITIES LLC
__________________________
By:
Title:
__________________________
By:
Title:
27
SCHEDULE A
NAME SERIES A SERIES B SERIES C SERIES D
---- -------- -------- -------- --------
UBS Securities LLC
TOTAL
A-1
SCHEDULE B
FORM OF OPINION OF
XXXXXXXXXXX & XXXXXXXX LLP REGARDING THE FUND
1. The Registration Statement and all post-effective
amendments, if any, are effective under the Securities Act and no stop order
with respect thereto has been issued and no proceeding for that purpose has been
instituted or, to the best of our knowledge, is threatened by the Commission.
Any filing of the Prospectus or any supplements thereto required under Rule 497
of the Securities Act Rules prior to the date hereof have been made in the
manner and within the time required by such rule.
2. The Fund has been duly formed and is validly existing
as a Massachusetts business trust under the laws of The Commonwealth of
Massachusetts, with full power and authority to conduct all the activities
conducted by it, to own or lease all assets owned (or to be owned) or leased (or
to be leased) by it and to conduct its business as described in the Registration
Statement and Prospectus, and the Fund is duly licensed and qualified to do
business and in good standing in each jurisdiction in which its ownership or
leasing of property or its conducting of business requires such qualification,
and the Fund owns, possesses or has obtained and currently maintains all
governmental licenses, permits, consents, orders, approvals and other
authorizations, whether foreign or domestic, necessary to carry on its business
as contemplated in the Prospectus. The Fund has no subsidiaries.
3. The capitalization of the Fund is as set forth in the
Registration Statement and the Prospectus. The Shares of Beneficial Interest of
the Fund conform in all respects to the description of them in the Prospectus.
All the outstanding Shares of Beneficial Interest have been duly authorized and
are validly issued, fully paid and nonassessable. The Shares to be issued and
delivered to and paid for by the Underwriters in accordance with the
Underwriting Agreement against payment therefor as provided by the Underwriting
Agreement have been duly authorized and when issued and delivered to the
Underwriters will have been validly issued and will be fully paid and
nonassessable (except as described in the Registration Statement). No person is
entitled to any preemptive or other similar rights with respect to the Shares.
4. The Fund is duly registered with the Commission under
the Investment Company Act as a diversified, closed-end management investment
company and all action under the Securities Act, the Investment Company Act, the
Securities Act Rules and the Investment Company Act Rules, as the case may be,
necessary to make the public offering and consummate the sale of the Shares as
provided in the Underwriting Agreement has or will have been taken by the Fund.
5. The Fund has full power and authority to enter into
each of the Underwriting Agreement, the Investment Advisory Agreement, the
Custodian Agreement, the Transfer Agency Agreement, the Auction Agency Agreement
and the
B-1
DTC Agreement (collectively, the "Fund Agreements") and to perform all of the
terms and provisions thereof to be carried out by it and (A) each Fund Agreement
has been duly and validly authorized, executed and delivered by the Fund, (B)
each Fund Agreement complies in all material respects with all applicable
provisions of the Investment Company Act, the Advisers Act , the Investment
Company Act Rules and the Advisers Act Rules, as the case may be, and (C)
assuming due authorization, execution and delivery by the other parties thereto,
each Fund Agreement constitutes the legal, valid and binding obligation of the
Fund enforceable in accordance with its terms, (1) subject, as to enforcement,
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and to general equitable principles (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (2) as rights to
indemnity thereunder may be limited by federal or state securities laws.
6. None of (A) the execution and delivery by the Fund of
the Fund Agreements, (B) the issue and sale by the Fund of the Shares as
contemplated by the Underwriting Agreement and (C) the performance by the Fund
of its obligations under the Fund Agreements or consummation by the Fund of the
other transactions contemplated by the Fund Agreements conflicts with or will
conflict with, or results or will result in a breach of, the Declaration of
Trust or the Amended By-Laws of the Fund or any agreement or instrument to which
the Fund is a party or by which the Fund is bound, or any law, rule or
regulation, or order of any court, governmental instrumentality, securities
exchange or association or arbitrator, whether foreign or domestic, applicable
to the Fund, except that we express no opinion as to the securities or "blue
sky" laws applicable in connection with the purchase and distribution of the
Shares by the Underwriters pursuant to the Underwriting Agreement.
7. The Fund is not currently in breach of, or in default
under, any written agreement or instrument to which it is a party or by which it
or its property is bound or affected.
8. No consent, approval, authorization or order of any
court or governmental agency or body or securities exchange or association,
whether foreign or domestic, is required by the Fund for the consummation by the
Fund of the transactions to be performed by the Fund or the performance by the
Fund of all the terms and provisions to be performed by or on behalf of it in
each case as contemplated in the Fund Agreements, except such as (A) have been
obtained under the Securities Act, the Investment Company Act, the Advisers Act,
the Securities Act Rules, the Investment Company Act Rules and the Advisers Act
Rules and (B) may be required by the New York Stock Exchange or under state
securities or "blue sky" laws in connection with the purchase and distribution
of the Shares by the Underwriters pursuant to the Underwriting Agreement.
9. The Common Shares are listed on the New York Stock
Exchange.
10. There is no action, suit or proceeding before or by
any court, commission, regulatory body, administrative agency or other
governmental agency or
B-2
body, foreign or domestic, now pending or, to our knowledge, threatened against
or affecting the Fund, which is required to be disclosed in the Prospectus that
is not disclosed in the Prospectus, and there are no contracts, franchises or
other documents that are of a character required to be described in, or that are
required to be filed as exhibits to, the Registration Statement that have not
been described or filed as required.
11. The Fund does not require any tax or other rulings to
enable it to qualify as a regulated investment company under Subchapter M of the
Code.
12. Each of the sections in the Prospectus entitled
"Distributions and Taxes" and the section in the Statement of Additional
Information entitled "Taxes" is a fair summary of the principal United States
federal income tax rules currently in effect applicable to the Fund and to the
purchase, ownership and disposition of the Shares.
13. The Registration Statement (except the financial
statements and schedules and other financial data included therein as to which
we express no view), at the time it became effective, and the Prospectus (except
as aforesaid), as of the date thereof, complied as to form in all material
respects to the requirements of the Securities Act, the Investment Company Act
and the rules and regulations of the Commission thereunder.
In rendering our opinion, we have relied, as to factual
matters, upon the attached written certificates and statements of officers of
the Fund.
In connection with the registration of the Shares, we have
advised the Fund as to the requirements of the Securities Act, the Investment
Company Act and the applicable rules and regulations of the Commission
thereunder and have rendered other legal advice and assistance to the Fund in
the course of its preparation of the Registration Statement and the Prospectus.
Rendering such assistance involved, among other things, discussions and
inquiries concerning various legal and related subjects and reviews of certain
corporate records, documents and proceedings. We also participated in
conferences with representatives of the Fund and its accountants at which the
contents of the Registration Statement and Prospectus and related matters were
discussed. With your permission, we have not undertaken, except as otherwise
indicated herein, to determine independently, and do not assume any
responsibility for, the accuracy, completeness or fairness of the statements in
the Registration Statement or Prospectus. On the basis of the information which
was developed in the course of the performance of the services referred to
above, no information has come to our attention that would lead us to believe
that the Registration Statement, at the time it became effective, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus, as of its date and as of the date hereof, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading or that any
amendment or supplement to the Prospectus, as of its respective date, and as of
the date hereof, contained any untrue statement of a material fact or omitted or
omits to
B-3
state a material fact necessary in order to make the statements in the
Prospectus, in the light of the circumstances under which they were made, not
misleading (except the financial statements, schedules and other financial data
included therein, as to which we express no view).
B-4
SCHEDULE C
FORM OF OPINION OF INTERNAL COUNSEL
REGARDING XXXXX XXXXX MANAGEMENT
1. Xxxxx Xxxxx has been duly formed and is validly
existing as a Massachusetts business trust under the laws of its jurisdiction of
incorporation with full power and authority to conduct all of the activities
conducted by it, to own or lease all of the assets owned or leased by it and to
conduct its business as described in the Registration Statement and Prospectus,
and Xxxxx Xxxxx is duly licensed and qualified and in good standing in each
other jurisdiction in which it is required to be so qualified and Xxxxx Xxxxx
owns, possesses or has obtained and currently maintains all governmental
licenses, permits, consents, orders, approvals and other authorizations, whether
foreign or domestic, necessary for Xxxxx Xxxxx to carry on its business as
contemplated in the Registration Statement and the Prospectus.
2. Xxxxx Xxxxx is duly registered as an investment
adviser under the Advisers Act and is not prohibited by the Advisers Act, the
Investment Company Act, the Advisers Act Rules or the Investment Company Act
Rules from acting as investment adviser for the Fund as contemplated by the
Investment Advisory Agreement, the Registration Statement and the Prospectus.
3. Xxxxx Xxxxx has full power and authority to enter
into each of the Underwriting Agreement, the Investment Advisory Agreement, the
Administration Agreement and the Shareholder Servicing Agreement (collectively,
the "Xxxxx Xxxxx Agreements") and to carry out all the terms and provisions
thereof to be carried out by it, and each such agreement has been duly and
validly authorized, executed and delivered by Xxxxx Xxxxx; each Xxxxx Xxxxx
Agreement complies in all material respects with all provisions of the
Investment Company Act, the Advisers Act, the Investment Company Act Rules and
the Advisers Act Rules; and assuming due authorization, execution and delivery
by the other parties thereto, each Xxxxx Xxxxx Agreement constitutes a legal,
valid and binding obligation of Xxxxx Xxxxx, enforceable in accordance with its
terms, (1) subject, as to enforcement, to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general equitable
principles (regardless of whether enforcement is sought in a proceeding in
equity or at law) and (2) as rights to indemnity thereunder may be limited by
federal or state securities laws.
4. Neither (A) the execution and delivery by Xxxxx Xxxxx
of any Xxxxx Xxxxx Agreement nor (B) the consummation by Xxxxx Xxxxx of the
transactions contemplated by, or the performance of its obligations under any
Xxxxx Xxxxx Agreement conflicts or will conflict with, or results or will result
in a breach of, the Agreement and Declaration of Trust or By-Laws of Xxxxx Xxxxx
or any agreement or instrument to which Xxxxx Xxxxx is a party or by which Xxxxx
Xxxxx is bound, or any law, rule or regulation, or order of any court,
governmental instrumentality, securities
C-1
exchange or association or arbitrator, whether foreign or domestic, applicable
to Xxxxx Xxxxx.
5. No consent, approval, authorization or order of any
court, governmental agency or body or securities exchange or association,
whether foreign or domestic, is required for the consummation of the
transactions contemplated in, or the performance by Xxxxx Xxxxx of its
obligations under, any Xxxxx Xxxxx Agreement, except such as have been obtained
under the Investment Company Act, the Advisers Act, the Securities Act, the
Investment Company Act Rules, the Advisers Act Rules and the Securities Act
Rules.
6. The description of Xxxxx Xxxxx and its business, and
the statements attributable to Xxxxx Xxxxx, in the Registration Statement and
the Prospectus complies with the requirements of the Securities Act, the
Investment Company Act, the Securities Act Rules and the Investment Company Act
Rules 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 not misleading.
7. There is no action, suit or proceeding before or by
any court, commission, regulatory body, administrative agency or other
governmental agency or body, foreign or domestic, now pending or, to our
knowledge, threatened against or affecting Xxxxx Xxxxx of a nature required to
be disclosed in the Registration Statement or Prospectus or that might
reasonably result in any material adverse change in the condition, financial or
otherwise, business affairs or business prospects of Xxxxx Xxxxx or the ability
of Xxxxx Xxxxx to fulfill its respective obligations under any Xxxxx Xxxxx
Agreement.
8. The Registration Statement (except the financial
statements and schedules and other financial data included therein as to which
we express no view), at the time it became effective, and the Prospectus (except
as aforesaid), as of the date thereof, appeared on their face to be
appropriately responsive in all material respects to the requirements of the
Securities Act, the Investment Company Act and the rules and regulations of the
Commission thereunder.
In rendering our opinion, we have relied, as to factual
matters, upon the attached written certificates and statements of officers of
Xxxxx Xxxxx.
In connection with the registration of the Shares, we have
advised Xxxxx Xxxxx as to the requirements of the Securities Act, the Investment
Company Act and the applicable rules and regulations of the Commission
thereunder and have rendered other legal advice and assistance to Xxxxx Xxxxx in
the course of the preparation of the registration Statement and the Prospectus.
Rendering such assistance involved, among other things, discussions and
inquiries concerning various legal and related subjects and reviews of certain
corporate records, documents and proceedings. We also participated in
conferences with representatives of the Fund and its accountants and Xxxxx Xxxxx
at which the contents of the registration and Prospectus and related matters
were discussed.
C-2
With your permission, we have not undertaken, except as otherwise indicated
herein, to determine independently, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements in the Registration
Statement or Prospectus. On the basis of the information which was developed in
the course of the performance of the services referred to above, no information
has come to our attention that would lead us to believe that the Registration
Statement, at the time it became effective, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus, as of its date and as of the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that any amendment
or supplement to the Prospectus, as of its respective date, and as of the date
hereof, contained any untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements in the
Prospectus, in the light of the circumstances under which they were made, not
misleading (except the financial statements, schedules and other financial data
included therein, as to which we express no view).
C-3
SCHEDULE D
FORM OF ACCOUNTANT'S LETTER
, 2004
The Board of Trustees of
Xxxxx Xxxxx Senior Floating-Rate Trust
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Managing Representative of the Underwriters
Ladies and Gentlemen:
We have audited the statement of assets and liabilities of Xxxxx Xxxxx Senior
Floating-Rate Trust (the "Fund") as of [ ], 2004 included in the
Registration Statement on Form N-2 filed by the Fund under the Securities Act of
1933 (the "Securities Act") (File No. 333-[ ]) and under the Investment Company
Act of 1940 (the "Investment Company Act") (File No. 811-21411); such statement
and our report with respect to such statement are included in the Registration
Statement.
In connection with the Registration Statement:
1. We are independent public accountants with respect to
the Fund within the meaning of the Act and the applicable rules and regulations
thereunder.
2. In our opinion, the statement of assets and
liabilities included in the Registration Statement and audited by us complies as
to form in all respects with the applicable accounting requirements of the
Securities Act, the Investment Company Act and the respective rules and
regulations thereunder.
3. For purposes of this letter we have read the minutes
of all meetings of the Shareholders, the Board of Trustees and all Committees of
the Board of Trustees of the Fund as set forth in the minute books at the
offices of the Fund, officials of the Fund having advised us that the minutes of
all such meetings through [ ], 2004, were set forth therein.
4. Fund officials have advised us that no financial
statements as of any date subsequent to [ ], 2004, are available. We have
made inquiries of certain officials of the Fund who have responsibility for
financial and accounting matters regarding whether there was any change at
[ ], 2004, in the capital shares or net assets of the Fund as compared with
amounts shown in the [ ], 2004, statement of
D-1
assets and liabilities included in the Registration Statement, except for
changes that the Registration Statement discloses have occurred or may occur. On
the basis of our inquiries and our reading of the minutes as described in
Paragraph 3, nothing came to our attention that caused us to believe that there
were any such changes.
The foregoing procedures do not constitute an audit made in
accordance with generally accepted auditing standards. Accordingly, we make no
representations as to the sufficiency of the foregoing procedures for your
purposes.
This letter is solely for the information of the addressees
and to assist the underwriters in conducting and documenting their investigation
of the affairs of the Fund in connection with the offering of the securities
covered by the Registration Statement, and is not to be used, circulated, quoted
or otherwise referred to within or without the underwriting group for any other
purpose, including but not limited to the registration, purchase or sale of
securities, nor is it to be filed with or referred to in whole or in part in the
Registration Statement or any other document, except that reference may be made
to it in the underwriting agreement or in any list of closing documents
pertaining to the offering of the securities covered by the Registration
Statement.
Very truly yours,
DELOITTE & TOUCHE LLP
D-2
