Partners Balanced Trust
Common Shares
($.001 Par Value)
DEALER GROUP AGREEMENT
[ ], 2003
DEALER GROUP AGREEMENT
[ ], 2003
UBS Warburg LLC,
as Managing Dealer
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Ladies and Gentlemen:
Partners Balanced Trust, a Delaware statutory trust (the "Trust"),
has entered into a distribution agreement with BlackRock Distributors, Inc., a
Delaware corporation (the "Distributor"), dated [ ], 2003 (the "Distribution
Agreement"), whereby the Distributor shall act as the Trust's principal
underwriter for the distribution of common shares of beneficial interest
$0.001 par value (the "Shares") of the Trust. The Shares shall be offered
through a group of dealers selected by UBS Warburg LLC. UBS Warburg LLC (the
"Managing Dealer") is acting under this Agreement on behalf of itself and each
of the dealers named in Schedule A hereto (each a "Dealer" and, together with
the Managing Dealer, the "Dealers"). Each dealer has entered into a selected
dealer agreement (each a "Dealer Agreement" and, collectively the "Dealer
Agreements") with the Distributor. The Shares are described in the Prospectus
which is referred to below.
The Trust has filed with the Securities and Exchange Commission (the
"Commission"), in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder (collectively
called the "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"), a registration statement on Form N-2
(File Nos. 333-102195 and 811-21270), including a prospectus and a statement
of additional information, relating to the Shares. The Trust has furnished to
you, for use by the 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, and including any information contained in a prospectus
subsequently filed with the Commission pursuant to Rule 497 under the Act and
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Act is herein called the "Registration
Statement," and the prospectus (including the statement of additional
information), in the form filed by the Trust with the Commission pursuant to
Rule 497 under the 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". Any registration statement filed pursuant to
Rule 462(b) of the Act is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. In addition, the Trust has
filed a Notification of Registration on Form N-8A (the "Notification")
pursuant to Section 8 of the Investment Company Act.
BlackRock Advisors, Inc. ("BAI") acts as the Trust's investment
adviser pursuant to an Investment Management Agreement by and between the
Trust and BAI, dated as of [ ], 2003 (the "Management Agreement"). BlackRock
Financial Management, Inc. ("BFM") and Wellington Management Company, LLP
("WMC") each act as an investment sub-adviser to the Trust pursuant to
Sub-Investment Advisory Agreements with BAI, as accepted and agreed to by the
Trust, each dated as of [ ], 2003 (each a "Sub-Advisory Agreement" and,
collectively, the "Sub-Advisory Agreements"). BAI, BFM and WMC are each an
"Adviser", and together, the "Advisers". State Street Bank and Trust Company
acts as the custodian (the "Custodian") of the Trust's cash and portfolio
assets pursuant to a Custodian Agreement, dated as of [ ], 2003 (the
"Custodian Agreement"). [ ] acts as the Trust's transfer agent, registrar,
shareholder servicing agent and dividend disbursing agent with respect to the
common shares of the Trust (the "Transfer Agent") pursuant to a Transfer Agent
and Service Agreement, dated as of [ ], 2003 (the "Transfer Agency
Agreement").
The Trust, the Advisers, the Distributor and the Dealers agree as
follows:
1. Sale of Shares. Upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth, the
Shares shall be offered to the public during an initial offering period that
commences on [ ], 2003 and shall terminate on [ ], 2003 (the "Initial Offering
Period"). Sales of Shares during the Initial Offering Period shall be limited
to an aggregate value of approximately $[ ]. In connection with the Initial
Offering Period, the Trust agrees to pay to the Dealers a commission of up to
$[ ] per Share determined as set forth in the Prospectus. The Trust also
agrees to pay to the Managing Dealer a commission of up to $[ ] per Share,
which commission the Managing Director shall pay to certain Dealers.
2. Payment and Delivery. The closing shall take place at the offices
of [ ], at 10:00A.M., New York City time, on [ ], 2003 (unless another time
and place shall be agreed to by you and the Trust) (the "Scheduled Closing
Time"). The time at which payment and delivery are actually made is
hereinafter sometimes called the "Time of Purchase" or the "Closing Date."
Certificates for the Shares shall be registered in such names and in such
denominations as you shall specify in accordance with the procedures of
National Securities Clearance Corporation ("NSCC"). Delivery to the [Dealers]
of and the payment to the Trust for the Shares shall be made by means of the
NSCC Fund Settlement, Entry and Registration Verification (FUND/SERV) System
(or by another mutually agreeable means) and shall be effected by the
settlement trade details that are transmitted to the NSCC by the Trust [and
each Dealer] on the [Purchase Date] in accordance with the procedures of the
NSCC.
3. Representations and Warranties of the Trust and the Advisers.
(a) The Trust and the Advisers jointly and severally represent
and warrant to each of the Dealers as of the date hereof and as of
the Closing Date referred to in Section 2 hereof, and agree with each
Dealer, as follows:
(i) Each of the Registration Statement and any Rule
462(b) Registration Statement has become effective under the
Act and no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration
Statement has been issued under the Act, or order of suspension
or revocation of registration pursuant to Section 8(e) of the
Investment Company Act, and no proceedings for any such purpose
have been instituted or are pending or, to the knowledge of the
Trust or the Advisers, are contemplated by the Commission, and
any request on the part of the Commission for additional
information has been complied with.
At the respective times the Registration Statement, any
Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective and at any Closing Date,
the Registration Statement, the Rule 462(b) Registration
Statement, the Notification and any amendments and supplements
thereto complied and will comply in all material respects with
the requirements of the Act and the Investment Company Act and
did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, except that this representation and warranty does
not apply to statements in or omissions from the Registration
Statement and Prospectus (and any amendment and supplement to
either of them made in reliance upon and in conformity with
information relating to any Dealer furnished by or on behalf of
any Dealer). Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued and at any Closing Date,
included or will include an untrue statement of a material fact
or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
except that this representation and warranty does not apply to
statements in or omissions from the Registration Statement and
Prospectus (and any amendment and supplement to either of them
made in reliance upon and in conformity with information
relating to any Dealer furnished by or on behalf of any
Dealer). If Rule 434 of the Act is used, the Trust will comply
with the requirements of Rule 434 and the Prospectus shall not
be "materially different", as such term is used in Rule 434,
from the prospectus included in the Registration Statement at
the time it became effective.
Each preliminary prospectus and the prospectus filed as
part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 497
under the Act, complied when so filed in all material respects
with the Rules and Regulations and each preliminary prospectus
and the Prospectus delivered to the Dealers for use in
connection with this offering was identical to the
electronically transmitted copies thereof filed with the
Commission pursuant to its Electronic Data Gathering Analysis
and Retrieval System ("▇▇▇▇▇"), except to the extent permitted
by Regulation S-T.
If a Rule 462(b) Registration Statement is required in
connection with the offering and sale of the Shares, the Trust
has complied or will comply with the requirements of Rule 111
under the Act relating to the payment of filing fees thereof.
(ii) The accountants who certified the statement of
assets and liabilities included in the Registration Statement
have advised the Trust that they are independent public
accountants as required by the Act.
(iii) The statement of assets and liabilities included
in the Registration Statement and the Prospectus, together with
the related notes, presents fairly the financial position of
the Trust at the date indicated; said statement has been
prepared in conformity with generally accepted accounting
principles ("GAAP").
(iv) To the extent estimated or projected, such
estimates or projections set forth in the Prospectus in the Fee
Table are reasonably believed to be attainable in all material
respects and are reasonably based.
(v) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Trust, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"), (B) there
have been no transactions entered into by the Trust, other than
those in the ordinary course of business, which are material
with respect to the Trust, and (C) there has been no dividend
or distribution of any kind declared, paid or made by the Trust
on any class of its capital stock.
(vi) The Trust has been duly organized and is validly
existing as a statutory trust in good standing under the laws
of the State of Delaware and has statutory trust power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement;
and the Trust is duly qualified as a foreign business trust to
transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse
Effect.
(vii) The Trust has no subsidiaries.
(viii) The Trust is duly registered with the Commission
under the Investment Company Act as a closed-end diversified
management investment company, and no order of suspension or
revocation of such registration has been issued or proceedings
therefor initiated or threatened by the Commission.
(ix) No person is serving or acting as an officer,
trustee or investment adviser of the Trust except in accordance
with the provisions of the Investment Company Act and the
Investment Advisers Act of 1940, as amended, and the rules and
regulations thereunder, (the "Advisers Act"). Except as
disclosed in the Registration Statement and the Prospectus (or
any amendment or supplement to either of them), no trustee of
the Trust is an "interested person" (as defined in the
Investment Company Act) of the Trust or an "affiliated person"
(as defined in the Investment Company Act) of any Dealer.
(x) The authorized, issued and outstanding common shares
of beneficial interest of the Trust is as set forth in the
Prospectus as of the date thereof under the caption
"Description of Shares." All issued and outstanding common
shares of beneficial interest of the Trust have been duly
authorized and validly issued and are fully paid and
non-assessable, except as provided for in the Trust's
declaration of trust, and have been offered and sold by the
Trust in compliance with all applicable laws (including,
without limitation, federal and state securities laws); none of
the outstanding common shares of beneficial interest of the
Trust was issued in violation of the preemptive or other
similar rights of any securityholder of the Trust.
(xi) The Shares to be offered during the Initial
Offering Period have been duly authorized for issuance and sale
and, when issued and delivered by the Trust against payment of
the consideration set forth in the Prospectus, will be validly
issued and fully paid and non-assessable, except as provided
for in the Trust's declaration of trust. The Shares conform in
all material respects to all statements relating thereto
contained in the Prospectus and such description conforms in
all material respects to the rights set forth in the
instruments defining the same; no holder of the Shares will be
subject to personal liability by reason of being such a holder;
and the issuance of the Shares is not subject to the preemptive
or other similar rights of any securityholder of the Trust.
(xii) The Trust is not in violation of its declaration
of trust or by-laws, or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or
instrument to which it is a party or by which it may be bound,
or to which any of the property or assets of the Trust is
subject (collectively, "Agreements and Instruments") except for
such violations or defaults that would not result in a Material
Adverse Effect; and the execution, delivery and performance of
this Agreement, the Management Agreement, the Sub-Advisory
Agreements, the Custodian Agreement, the Transfer Agency
Agreement and the Distribution Agreement and the consummation
of the transactions contemplated herein and in the Registration
Statement (including the issuance and sale of the Shares and
the use of the proceeds from the sale of the Shares as
described in the Prospectus under the caption "Use of
Proceeds") and compliance by the Trust with its obligations
hereunder have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets
of the Trust pursuant to, the Agreements and Instruments
(except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material
Adverse Effect), nor will such action result in any violation
of the provisions of the declaration of trust or by-laws of the
Trust or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having
jurisdiction over the Trust or any of its assets, properties or
operations. As used herein, a "Repayment Event" means any event
or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such
indebtedness by the Trust.
(xiii) There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the
knowledge of the Trust or the Advisers, threatened, against or
affecting the Trust, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or
which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets of the
Trust or the consummation of the transactions contemplated in
this Agreement or the performance by the Trust of its
obligations hereunder. The aggregate of all pending legal or
governmental proceedings to which the Trust is a party or of
which any of its property or assets is the subject which are
not described in the Registration Statement, including ordinary
routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(xiv) There are no contracts or documents which are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits thereto by the Act or the
Investment Company Act which have not been so described and
filed as required.
(xv) The Trust owns or possesses, or can acquire on
reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks,
service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on
the business now operated by the Trust, and the Trust has not
received any notice or is not otherwise aware of any
infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Trust
therein, and which infringement or conflict (if the subject of
any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect; provided that the Trust's right to use
the name "BlackRock" is limited as set forth in Section 16 of
the Management Agreement.
(xvi) No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree
of, any court or governmental authority or agency is necessary
or required for the performance by the Trust of its obligations
hereunder, in connection with the offering, issuance or sale of
the Shares hereunder or the consummation of the transactions
contemplated by this Agreement, except such as have been
already obtained or as may be required under the Act, the
Investment Company Act, the Securities Exchange Act of 1934, as
amended (the "1934 Act"), or state securities laws and except
where the absence of such filing with, authorization, approval,
consent, license, order, registration, qualification or decree
would not, singly or in the aggregate, have a Material Adverse
Effect.
(xvii) The Trust possesses such permits, licenses,
approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary
to operate its properties and to conduct the business as
contemplated in the Prospectus; the Trust is in compliance with
the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in
the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and the Trust
has not received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(xviii) Any advertising, sales literature or other
promotional material (including "prospectus wrappers", "broker
kits," "road show slides" and "road show scripts") authorized
in writing by or prepared by the Trust or the Advisers used in
connection with the public offering of the Shares
(collectively, "sales material"), when read together with the
Prospectus, does not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. Moreover, all sales material complied and will
comply in all material respects with the applicable
requirements of the Act, the Investment Company Act and the
rules and interpretations of the National Association of
Securities Dealers, Inc. ("NASD").
(xix) The Trust intends to direct the investment of the
proceeds of the offering described in the Registration
Statement in such a manner as to comply with the requirements
of Subchapter M of the Internal Revenue Code of 1986, as
amended ("Subchapter M of the Code" and the "Code,"
respectively), and intends to qualify as a regulated investment
company under Subchapter M of the Code.
(xx) This Agreement, the Management Agreement, the
Sub-Advisory Agreements, the Custodian Agreement, the Transfer
Agency Agreement and the Distribution Agreement have each been
duly authorized by all requisite action on the part of the
Trust, executed and delivered by the Trust, as of the dates
noted therein, and each complies with all applicable provisions
of the Investment Company Act. Assuming due authorization,
execution and delivery by the other parties thereto with
respect to the Custodian Agreement and the Transfer Agency
Agreement, each of the Management Agreement, the Sub-Advisory
Agreements, the Custodian Agreement, the Transfer Agency
Agreement and the Distribution Agreement constitutes a valid
and binding agreement of the Trust, enforceable against the
Trust in accordance with its terms, except as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law).
(xxi) There are no persons with registration rights or
other similar rights to have any securities registered pursuant
to the Registration Statement or otherwise registered by the
Trust under the Act.
(b) The Advisers represent and warrant to each Dealer as of the
date hereof and as of the Closing Date referred to in Section 2
hereof as follows:
(i) Each of BAI and BFM has been duly organized and is
validly existing and in good standing as a corporation under
the laws of the State of Delaware, and WMC has been duly
organized and is validly existing and in good standing as a
limited liability partnership under the laws of the
Commonwealth of Massachusetts, and each of BAI and BFM has full
corporate power and authority, and WMC has full power and
authority, to own, lease and operate its properties and to
conduct its business as described in the Prospectus and each is
duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which
such qualification is required.
(ii) Each of Advisers is duly registered and in good
standing with the Commission as an investment adviser under the
Advisers Act, and is not prohibited by the Advisers Act or the
Investment Company Act, or the rules and regulations under such
acts, from acting under the Management Agreement, the
Sub-Advisory Agreements for the Trust as contemplated by the
Prospectus.
(iii) The description of each Adviser in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them) complied and comply in all
material respects with the provisions of the Act, the
Investment Company Act and the Advisers Act and is true and
correct in all material respects and does not contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(iv) Each of the Advisers has the financial resources
available to it necessary for the performance of its services
and obligations as contemplated in the Prospectus, this
Agreement and under the respective Management Agreement and
Sub-Advisory Agreements to which it is a party.
(v) This Agreement, the Management Agreement, the
Sub-Advisory Agreements and the Corporate Advisory Agreement,
by and between UBS Warburg LLC, BAI and WMC (the "Corporate
Advisory Agreement"), have each been duly authorized, executed
and delivered by each respective Adviser, and the Management
Agreement, assuming due authorization, execution and delivery
by the other parties thereto, the Sub-Advisory Agreements and
the Corporate Advisory Agreement each constitute a valid and
binding obligation of each respective Adviser, enforceable
against each respective Adviser in accordance with its terms,
except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a
proceeding in equity or at law); and neither the execution and
delivery of this Agreement, the Management Agreement, the
Sub-Advisory Agreements or the Corporate Advisory Agreement nor
the performance by either of the Advisers of its obligations
hereunder or thereunder will conflict with, or result in a
breach of any of the terms and provisions of, or constitute,
with or without the giving of notice or lapse of time or both,
a default under, any agreement or instrument to which either
Adviser is a party or by which it is bound, the certificate of
incorporation, the by-laws or other organizational documents of
each of the Advisers, or to each Adviser's knowledge, by any
law, order, decree, rule or regulation applicable to it of any
jurisdiction, court, federal or state regulatory body,
administrative agency or other governmental body, stock
exchange or securities association having jurisdiction over the
Advisers or their respective properties or operations; and no
consent, approval, authorization or order of any court or
governmental authority or agency is required for the
consummation by the Advisers of the transactions contemplated
by this Agreement, the Management Agreement, the Sub-Advisory
Agreements or the Corporate Advisory Agreement, except as have
been obtained or may be required under the Act, the Investment
Company Act, the 1934 Act or state securities laws and except
where the absence of such filing with, authorization, approval,
consent, license, order, registration, qualification or decree
would not, singly or in the aggregate, have a material adverse
effect. The representations and warranties made by the Advisers
in this paragraph in regards to the Corporate Advisory
Agreement are made only as of the Closing Date.
(vi) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, there has not occurred any
event which should reasonably be expected to have a material
adverse effect on the ability of either Adviser to perform its
respective obligations under this Agreement and the respective
Management Agreement and Sub-Advisory Agreements to which it is
a party.
(vii) There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the
knowledge of the Advisers, threatened against or affecting
either of the Advisers or any "affiliated person" of either of
the Advisers (as such term is defined in the Investment Company
Act) or any partners, directors, officers or employees of the
foregoing, whether or not arising in the ordinary course of
business, which might reasonably be expected to result in any
material adverse change in the condition, financial or
otherwise, or earnings, business affairs or business prospects
of either of the Advisers, materially and adversely affect the
properties or assets of either of the Advisers or materially
impair or adversely affect the ability of either of the
Advisers to function as an investment adviser or perform its
obligations under the Management Agreement or the Sub-Advisory
Agreements, or which is required to be disclosed in the
Registration Statement and the Prospectus.
(viii) Each Adviser is not in violation of its
certificate of incorporation, by-laws or other organizational
documents or in default under any agreement, indenture or
instrument except for such violations or defaults that would
not result in a material adverse effect on the respective
Adviser or the Trust.
(c) Any certificate signed by any officer of the Trust or the
Advisers delivered to the Managing Dealer or to counsel for the
Managing Dealer shall be deemed a representation and warranty by the
Trust or the Advisers, as the case may be, to each Dealer as to the
matters covered thereby.
4. Certain Covenants of the Trust and the Advisers
(a) The Trust, the Advisers and the Distributor, jointly and
severally, covenant with each Dealer as follows:
(i) The Trust, subject to Section 4(a)(ii), will comply
with the requirements of Rule 430A or Rule 434, as applicable,
and will notify the Managing Dealer promptly and, if requested
by you, will confirm the notice in writing or by sending any
relevant copies of the following documents to the Managing
Dealer, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any
supplement to the Prospectus or any amended Prospectus shall
have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and
(iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or
of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the
qualification of the Shares for offering or sale in any
jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Trust will promptly
effect the filings necessary pursuant to Rule 497 of the Act
and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing
under Rule 497 was received for filing by the Commission and,
in the event that it was not, it will promptly file such
prospectus. The Trust will make every reasonable effort to
prevent the issuance of any stop order, or order of suspension
or revocation of registration pursuant to Section 8(e) of the
Investment Company Act, and, if any such stop order or order of
suspension or revocation of registration is issued, to obtain
the lifting thereof at the earliest possible moment.
(ii) The Trust will give the Managing Dealer notice of
its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b))
or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time
it became effective or to the Prospectus, will furnish the
Managing Dealer with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the
case may be, and will not file or use any such document to
which the Managing Dealer or counsel for the Managing Dealer
shall reasonably object within a reasonable period of time
after such documents are furnished by the Trust.
(iii) The Trust has furnished or will deliver to the
Managing Dealer and counsel for the Managing Dealer, without
charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein)
and signed copies of all consents and certificates of experts,
and will also deliver to the Managing Dealer, without charge, a
conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each
of the Dealers. The copies of the Registration Statement and
each amendment thereto furnished to the Dealers will be
identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
(iv) The Trust has delivered to each Dealer, without
charge, as many copies of each preliminary prospectus as such
Dealer reasonably requested, and the Trust hereby consents to
the use of such copies for purposes permitted by the Act. The
Trust will furnish to each Dealer, without charge, for such
period as in the opinion of counsel for the Managing Dealer, a
Prospectus required to be delivered under the Act or the 1934
Act in connection with the sale of the Shares, such number of
copies of the Prospectus (as amended or supplemented) as such
Dealer may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Dealers will
be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
(v) If at any time when a prospectus is required by the
Act to be delivered in connection with sales of the Shares, any
event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Managing
Dealer or for the Trust, to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus
will not include any untrue statements of a material fact or
omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement
or amend or supplement the Prospectus in order to comply with
the requirements of the Act, the Trust will promptly prepare
and file with the Commission, subject to Section 4(a)(ii), such
amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or
the Prospectus comply with such requirements, and the Trust
will furnish to the Dealers such number of copies of such
amendment or supplement as the Dealers may reasonably request.
(vi) The Trust will use its best efforts, in cooperation
with the Dealers, to qualify the Shares for offering and sale,
or to make such filings and to pay such fees as may be required
in connection with the offering and sale of the Shares, under
the applicable securities laws of such states and other
jurisdictions of the United States as the Managing Dealer may
designate and to maintain such qualifications, or filings, in
effect for a period of not less than one year from the later of
the effective date of the Registration Statement and any Rule
462(b) Registration Statement; provided, however, that the
Trust shall not be obligated to file any general consent to
service of process or to qualify as a foreign business trust or
as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise
so subject. In each jurisdiction in which the Shares have been
so qualified or such a filing has been made, the Trust will
file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect
for a period of not less than one year from the effective date
of the Registration Statement and any Rule 462(b) Registration
Statement.
(vii) The Trust will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally
available to its security holders as soon as practicable an
earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a)
of the Act.
(viii) The Trust will use the net proceeds received by
it from the sale of the Shares in the manner specified in the
Prospectus under "Use of Proceeds".
(ix) During period of 180 days from the date of the
Prospectus, the Trust will not, without the prior written
consent of the Managing Dealer, (A) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase or otherwise
transfer or dispose of Shares or any securities convertible
into or exercisable or exchangeable for Shares or file any
registration statement under the Act with respect to any of the
foregoing or (B) enter into any swap or any other agreement or
any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the
Shares, whether any such swap or transaction described in
clause (A) or (B) above is to be settled by delivery of Shares
or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (1) the Shares to be sold hereunder
or (2) Shares issued pursuant to any dividend reinvestment
plan.
(x) The Trust, during the period when the Prospectus is
required to be delivered under the Act or the 1934 Act, will
file all documents required to be filed with the Commission
pursuant to the Investment Company Act and the 1934 Act within
the time periods required by the Investment Company Act and the
1934 Act, respectively.
(xi) The Trust will comply with the requirements of
Subchapter M of the Code to qualify as a regulated investment
company under the Code.
(xii) If the Trust elects to rely upon Rule 462(b), the
Trust shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) promptly and the
Trust shall at the time of filing either pay to the Commission
the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act.
(xiii) The Trust will pay all costs, expenses, fees and
taxes (other than any transfer taxes and fees and disbursements
of counsel for the Managing Dealer except as set forth under
Section 5 hereof and (iii), (iv) and (v) below) in connection
with (i) the preparation and filing of the Registration
Statement, each preliminary prospectus, the Prospectus, and any
amendments or supplements thereto, and the printing and
furnishing of copies of each thereof to the Dealers (including
costs of mailing and shipment), (ii) the registration, issue,
sale and delivery of the Shares, (iii) the producing, word
processing and/or printing of this Agreement, any dealer
agreements, any Powers of Attorney and any closing documents
(including compilations thereof) and the reproduction and/or
printing and furnishing of copies of each thereof to the
Dealers, (iv) the qualification of the Shares for offering and
sale, or the making of such filings as may be necessary in
connection with the offering and sale of the Shares, under
state laws and the determination of their eligibility for
investment under state law as aforesaid (including the
reasonable legal fees and filing fees and other disbursements
of counsel for the Managing Dealer) and the printing and
furnishing of copies of any blue sky surveys or legal
investment surveys to the Dealers, (v) any filing for review of
the public offering of the Shares by the NASD and (vii) the
performance of the Trust's other obligations hereunder. BAI has
agreed to pay organizational expenses and offering costs (other
than sales load) of the Trust that exceed $[ ] per Share.
5. Reimbursement of Dealers' Expenses. If the Shares are not
delivered for any reason other than the termination of this Agreement pursuant
to the first two paragraphs of Section 7 hereof or the default by one or more
of the Dealers in its or their respective obligations hereunder, the Trust
shall, in addition to paying the amounts described in Section 4(a)(xiii)
hereof, reimburse the Managing Dealer for all of its out-of-pocket expenses,
including the fees and disbursements of its counsel.
6. Conditions of Dealers' Obligations. The obligations of the several
Dealers during the Initial Offering Period under the Dealer Agreements are
subject to, in the good faith judgement of the Dealers, the accuracy in all
material respects of the representations and warranties of the Trust and the
Advisers contained in Section 3 hereof or in certificates of any officer of
the Trust or the Advisers delivered pursuant to the provisions hereof, to the
performance by the Trust and the Advisers of their respective covenants and
other obligations hereunder, and to the following further conditions:
(a) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective and at the Closing Date
no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the Act, no notice or order
pursuant to Section 8(e) of the Investment Company Act shall have
been issued, and no proceedings with respect to either shall have
been initiated or threatened by the Commission, and any request on
the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the
Managing Dealer. A prospectus containing the Rule 430A information
shall have been filed with the Commission in accordance with Rule 497
(or a post-effective amendment providing such information shall have
been filed and declared effective in accordance with the requirements
of Rule 430A).
(b) No amendment or supplement to the Registration Statement or
Prospectus shall be filed prior to the time the Registration
Statement becomes effective to which you reasonably object in writing
within a reasonable period of time after being notified about such
amendment or supplement.
(c) The Registration Statement shall become effective at or
before 5:00 P.M., New York City time, on the date of this Agreement,
unless a later time (but not later than 5:00 P.M., New York City
time, on the second full business day after the date of this
Agreement) shall be agreed to by the Trust and you in writing or by
telephone, confirmed in writing.
(d) At the Closing Date, the Managing Dealer shall have
received the favorable opinions, dated as of the Closing Date, of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Trust, [ ],
counsel for the BAI and [ ], counsel for WMC, in form and substance
satisfactory to counsel for the Managing Dealer, together with signed
or reproduced copies of such letters for each of the other Dealers
substantially to the effect set forth in Exhibit A hereto and to such
further effect as counsel to the Managing Dealer may reasonably
request.
(e) At the Closing Date, the Managing Dealer shall have
received the favorable opinion, dated as of the Closing Date, of
▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Managing Dealer, together
with signed or reproduced copies of such letter for each of the other
Dealers with respect to the matters set forth in clauses [(A) (i),
(ii), (vi), (vii) (solely as to preemptive or other similar rights
arising by operation of law or under the charter or by-laws of the
Trust), (viii) through (x), inclusive, (xii), (xiv) (solely as to the
information in the Prospectus under "Description of Shares") and the
last paragraph of Exhibit A hereto]. In giving such opinion such
counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the
federal law of the United States, upon the opinions of counsel
satisfactory to the Managing Dealer. Such counsel may also state
that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers
of the Trust and certificates of public officials.
(f) At the Closing Date, there shall not have been, since the
date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings or business
affairs of the Trust, whether or not arising in the ordinary course
of business, and the Managing Dealer shall have received a
certificate of a duly authorized officer of the Trust and of the
Treasurer of the Trust and of the President or a Vice President or
Managing Director of each of the Advisers, dated as of the Closing
Date, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Sections 3(a) and
(b) hereof are true and correct in all material respects with the
same force and effect as though expressly made at and as of the
Closing Date, (iii) each of the Trust and the Advisers, respectively,
has complied in all material respects with all agreements and
satisfied in all material respects all conditions on its part to be
performed or satisfied at or prior to the Closing Date, and (iv) no
stop order suspending the effectiveness of the Registration
Statement, or order of suspension or revocation of registration
pursuant to Section 8(e) of the Investment Company Act, has been
issued and no proceedings for any such purpose have been instituted
or are pending or are contemplated by the Commission.
(g) At the time of the execution of this Agreement, the
Managing Dealer shall have received from [ ] a letter dated such
date, in form and substance satisfactory to the Managing Dealer,
together with signed or reproduced copies of such letter for each of
the other Dealers containing statements and information of the type
ordinarily included in accountants' "comfort letters" with respect to
the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(h) At the Closing Date, the Managing Dealer shall have
received from [ ] a letter, dated as of the Closing Date, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (g) of this Section, except that the specified
date referred to shall be a date not more than three business days
prior to the Closing Date.
(i) At the Closing Date, counsel for the Managing Dealer shall
have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Shares as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties,
or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Trust and the Advisers in connection
with the organization and registration of the Trust under the
Investment Company Act and the issuance and sale of the Shares as
herein contemplated shall be satisfactory in form and substance to
the Managing Dealer and counsel for the Managing Dealer.
7. Effective Date of Agreement; Termination. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall
have received notification of the effectiveness of the Registration Statement,
or (ii) if Rule 430A under the Act is used, when the parties hereto have
executed and delivered this Agreement.
The obligations of the several Dealers during the Initial Offering
Period under the Dealer Agreements shall be subject to termination in the
absolute discretion of you, if, since the time of execution of this Agreement
or the respective dates as of which information is given in the Registration
Statement and Prospectus, (y) there has been any material adverse change,
financial or otherwise (other than as referred to in the Registration
Statement and Prospectus), in the operations, business or condition of the
Trust and its subsidiaries taken as a whole, which would, in your judgment,
make it impracticable to market the Shares, or (z) if, at any time prior to
the Time of Purchase or, with respect to the purchase of any Shares, trading
in securities on the New York Stock Exchange, the American Stock Exchange or
the Nasdaq National Market shall have been suspended or limitations or minimum
prices shall have been established on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market, or if a banking
moratorium shall have been declared either by the United States or New York
State authorities, or if the United States shall have declared war in
accordance with its constitutional processes or there shall have occurred any
material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as, in your judgment, to make it
impracticable to market the Shares.
If you elect to terminate this Agreement as provided in this Section
7, the Trust and each other Dealer shall be notified promptly by letter or
telegram. If this Agreement is terminated for any reason or if the conditions
to the obligations of the Dealers set forth in Section 6 hereof are not
satisfied (or waived by the Dealers) at the Scheduled Closing Time, any funds
received by the Trust from the Dealers for the purchase of Shares shall be
immediately returned by the Trust to the respective Dealers, and the Trust
and/or the Distributor shall instruct NSCC to return to the respective Dealers
any funds in its possession or control representing the purchase price of
Shares and to cancel any transaction submitted to it by any Dealer for the
purchase of Shares during the Initial Offering Period.
If the sale of the Shares, as contemplated by this Agreement, is not
carried out for any reason permitted under this Agreement or if such sale is
not carried out because the Trust shall be unable to comply with any of the
terms of this Agreement, the Trust shall not be under any obligation or
liability under this Agreement (except to the extent provided in Sections
4(a)(xiii), 5 and 8 hereof), and the Dealers shall be under no obligation or
liability to the Trust under this Agreement (except to the extent provided in
Section 8 hereof) or under the Dealer Agreements or to one another hereunder.
8. Indemnity and Contribution.
(a) Each of the Trust and the Advisers, jointly and severally,
agrees to indemnify, defend and hold harmless each Dealer, its
trustees, partners, directors and officers, and any person who
controls any Dealer within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and the 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 Dealer or any such person may
incur under the Act, the Exchange 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 Trust) or in a Prospectus (the term Prospectus for the
purpose of this Section 8 being deemed to include any preliminary
prospectus, the Prospectus and the Prospectus as amended or
supplemented by the Trust), 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 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 Dealer
through you to the Trust or the Adviser, expressly for use with
reference to such Dealer 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 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 Dealer
(or to the benefit of any person controlling such Dealer) 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 Dealer 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 Company with paragraph (h) of Section 4 hereof.
If any action, suit or proceeding (together, a "Proceeding") is
brought against an Dealer or any such person in respect of which
indemnity may be sought against the Trust or the Advisers pursuant to
the foregoing paragraph, such Dealer or such person shall promptly
notify the Trust and the Advisers in writing of the institution of
such Proceeding and the Trust or the Advisers shall assume the
defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all
reasonable fees and expenses; provided, however, that the omission to
so notify the Trust or the Advisers shall not relieve the Trust or
the Advisers from any liability which the Trust or the Advisers may
have to any Dealer or any such person or otherwise. Such Dealer 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 Dealer or of such person
unless the employment of such counsel shall have been authorized in
writing by the Trust or the Advisers, as the case may be, in
connection with the defense of such Proceeding or the Trust or the
Advisers 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 Trust or the Advisers (in which case neither
the Trust nor the Advisers shall 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 Trust or the Advisers and paid as incurred (it being
understood, however, that the Trust or the Advisers 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
Trust nor the Adviser shall be liable for any settlement of any
Proceeding effected without its written consent but if settled with
the written consent of the Trust or the Advisers, the Trust or the
Advisers, as the case may be, agree to indemnify and hold harmless
any Dealer and any such person from and against any loss or liability
by reason of such settlement. 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 Dealer severally agrees to indemnify, defend and hold
harmless the Trust and the Advisers, and each of their respective
trustees, directors and officers, and any person who controls the
Trust or the Advisers within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and the 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, the Trust or the Advisers or any such
person may incur under the Act, the Exchange 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 Dealer
through you to the Trust or the Advisers expressly for use with
reference to such Dealer in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment
thereof by the Trust) 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.
If any Proceeding is brought against the Trust, the Advisers or
any such person in respect of which indemnity may be sought against
any Dealer pursuant to the foregoing paragraph, the Trust, the
Advisers or such person shall promptly notify such Dealer in writing
of the institution of such Proceeding and such Dealer shall assume
the defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all
reasonable fees and expenses; provided, however, that the omission to
so notify such Dealer shall not relieve such Dealer from any
liability which such Dealer may have to the Trust, the Advisers or
any such person or otherwise. The Trust, the Advisers or such person
shall have the right to employ its own counsel in any such case, but
the reasonable fees and expenses of such counsel shall be at the
expense of the Trust, the Advisers or such person unless the
employment of such counsel shall have been authorized in writing by
such Dealer in connection with the defense of such Proceeding or such
Dealer 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 Dealer (in which case such Dealer shall not
have the right to direct the defense of such Proceeding on behalf of
the indemnified party or parties, but such Dealer may employ counsel
and participate in the defense thereof but the reasonable fees and
expenses of such counsel shall be at the expense of such Dealer), in
any of which events such reasonable fees and expenses shall be borne
by such Dealer and paid as incurred (it being understood, however,
that such Dealer 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). No Dealer shall be liable for any settlement of any such
Proceeding effected without the written consent of such Dealer but if
settled with the written consent of such Dealer, such Dealer agrees
to indemnify and hold harmless the Trust, the Advisers and any such
person from and against any loss or liability by reason of such
settlement. 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.
(c) In addition to the foregoing indemnification, the Trust and
the Advisers also, jointly and severally, agree to indemnify and hold
harmless each Dealer and each person, if any, who controls any Dealer
within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 8(a), as
limited by the proviso set forth therein, with respect to any sales
material.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under subsections (a) and (b) of
this Section 8 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 Trust and the Advisers on the one
hand and the Dealers 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 Trust and the Advisers on
the one hand and of the Dealers 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 Trust
and the Advisers on the one hand and the Dealers on the other shall
be deemed to be in the same respective proportions as the total
proceeds from the offering (net of discounts and commissions but
before deducting expenses) received by the Trust and the total
discounts and commissions received by the Dealers, bear to the
aggregate public offering price of the Shares. The relative fault of
the Trust and the Advisers on the one hand and of the Dealers 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 Trust or the Advisors or by the Dealers 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.
(e) The Trust, the Advisers and the Dealers agree that it would
not be just and equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the Dealers 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 8, no Dealer shall be required to contribute any
amount in excess of the amount by which the total price at which the
Shares sold by such Dealer and distributed to the public were offered
to the public exceeds the amount of any damage which such Dealer has
otherwise been required to pay by reason of such untrue statement or
alleged untrue statement or omission or alleged omission. 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 Dealers'
obligations to contribute pursuant to this Section 8 are several in
proportion to the Shares sold by such Dealers and not joint.
(f) The indemnity and contribution agreements contained in this
Section 8 and the covenants, warranties and representations of the
Trust contained in this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of any
Dealer, its partners, directors or officers or any person (including
each partner, officer or director of such person) who controls any
Dealer within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, or by or on behalf of the Trust or the Advisers,
its trustees, directors or officers or any person who controls the
Trust or the Advisers within the meaning of Section 15 of the 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 Trust
and the Advisers and each Dealer agree promptly to notify each other
of the commencement of any Proceeding against it and, in the case of
the Trust, against any of the Trust's or the Advisers' trustees,
officers or directors in connection with the issuance and sale of the
Shares, or in connection with the Registration Statement or
Prospectus.
9. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Dealers, shall be sufficient in all respects if delivered or sent to UBS
Warburg LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇, Attention: Syndicate
Department, if to the Trust, BAI, BFM or the Distributor, shall be sufficient
in all respects if delivered or sent to the Trust at the offices of BlackRock
Financial Management, Inc. at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and, if to WMC, at [ ].
10. 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.
11. 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
Trust, Advisers and the Distributor consent to the jurisdiction of such courts
and personal service with respect thereto. The Trust and Advisers 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 Warburg LLC or any indemnified party. Each of UBS
Warburg LLC and the Trust, Advisers and the Distributor (on its behalf and, to
the extent permitted by applicable law, on behalf of its stockholders 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. The Trust, Advisers and the
Distributor agree that a final judgment in any such action, proceeding or
counterclaim brought in any such court shall be conclusive and binding upon
the Trust, the Advisers or the Distributor, as the case may be, and may be
enforced in any other courts in the jurisdiction of which the Trust, the
Advisers or the Distributor, as the case may be, is or may be subject, by suit
upon such judgment.
12. Parties at Interest. The Agreement herein set forth has been and
is made solely for the benefit of the Dealers and the Trust, the Advisers and
the Distributor and to the extent provided in Section 8 hereof the controlling
persons, 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 Dealers) shall
acquire or have any right under or by virtue of this Agreement.
13. 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.
14. Successors and Assigns. This Agreement shall be binding upon the
Dealers and the Trust, the Advisers and the Distributor and their successors
and assigns and any successor or assign of any substantial portion of the
Trust's, the Advisers' and the Distributor's and any of the Dealers'
respective businesses and/or assets.
If the foregoing correctly sets forth the understanding among the
Trust, the Advisers, the Distributor and the Dealers, please so indicate in
the space provided below for the purpose, whereupon this letter and your
acceptance shall constitute a binding agreement among the Trust, the Advisers,
the Distributor and the Dealers, severally.
Very truly yours,
Partners Balanced Trust
By:
------------------------------
Name:
Title:
BlackRock Advisors, Inc.
By:
------------------------------
Name:
Title:
BlackRock Financial Management, Inc.
By:
-----------------------------
Name:
Title:
Wellington Management Company, LLP
By:
-----------------------------
Name:
Title:
BlackRock Distributors, Inc.
By:
-----------------------------
Name:
Title:
Accepted and agreed to as of the
date first above written, on
behalf of itself and the
other several Dealers
UBS WARBURG LLC
By: UBS WARBURG LLC
By: __________________________
Name:
Title:
By: __________________________
Name:
Title:
Schedule A
LIST OF DEALERS
UBS Warburg LLC
[others to be provided]
Exhibit A
FORM OF OPINION OF TRUST'S AND ADVISERS'
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 6(e)
(A) With respect to the Trust:
(i) The Trust has been duly organized and is validly existing
as a statutory trust in good standing under the laws of the State of
Delaware.
(ii) The Trust has statutory trust power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under the Dealer Group Agreement.
(iii) The Trust is duly qualified as a foreign business trust
to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding shares of
beneficial interest of the Trust is as set forth in the Prospectus
under the caption "Description of Shares -- Common Shares"; all
issued and outstanding shares of beneficial interest of the Trust
have been duly authorized and validly issued and are fully paid and
non-assessable, except as provided for in the Trust's declaration of
trust, and have been offered and sold by the Trust in compliance with
all applicable laws (including, without limitation, federal and state
securities laws); the Shares conform in all material respects as to
legal matters to all statements relating thereto contained in the
Prospectus and such description conforms in all material respects to
the rights set forth in the instruments defining the same; and none
of the outstanding shares of beneficial interest of the Trust was
issued in violation of the preemptive or other similar rights of any
securityholder of the Trust.
(v) The Shares to be offered during the Initial Offering Period
by the Dealers have been duly authorized for issuance and sale and,
when issued and delivered by the Trust against payment of the
consideration set forth in the Prospectus, will be validly issued and
fully paid and non-assessable, except as provided for in the Trust's
declaration of trust, and no holder of the Shares is or will be
subject to personal liability by reason of being such a holder.
(vi) The issuance of the Shares is not subject to preemptive or
other similar rights of any securityholder of the Trust.
(vii) The Dealer Group Agreement has been duly authorized,
executed and delivered by the Trust.
(viii) We have been orally advised by the Commission that the
Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the Act; any required
filing of the Prospectus pursuant to Rule 497(c) or Rule 497(h) has
been made in the manner and within the time period required by Rule
497; and, we have been orally advised by the Commission that no stop
order suspending the effectiveness of the Registration Statement or
any Rule 462(b) Registration Statement has been issued under the Act,
and, we have been orally advised by the Commission that no order of
suspension or revocation of registration pursuant to Section 8(e) of
the Investment Company Act has been issued, and to our knowledge no
proceedings for any such purpose have been instituted or are pending
or threatened by the Commission.
(ix) The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434
Information, as applicable, the Prospectus and each amendment or
supplement to the Registration Statement and Prospectus as of their
respective effective or issue dates (other than the financial
statements and supporting schedules included therein or omitted
therefrom, as to which we need express no opinion), and the
notification on Form N-8A complied as to form in all material
respects with the requirements of the Act, the Investment Company Act
and the Rules and Regulations.
(x) The form of certificate used to evidence the Shares
complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the declaration of
trust and by-laws of the Trust.
(xi) To our knowledge, there are no legal or governmental
proceedings pending to which the Trust is a party or to which any
property of the Trust is subject that are required to be disclosed in
the Prospectus pursuant to Item 12 of Form N-2 under the Investment
Company Act that are not so disclosed.
(xii) The statements set forth in the Prospectus under
"Description of shares" and "Tax matters" and in the Registration
Statement under Item 29 (Indemnification) insofar as such statements
summarize certain provisions of law referred to therein or summarize
certain provisions of the Declaration of Trust or the Trust's
By-Laws, fairly summarize such provisions in all material respects.
(xiii) Each of the Management Agreement, the Sub-Advisory
Agreements, the Custodian Agreement, the Transfer Agency Agreement,
the Distribution Agreement and the Dealer Group Agreement comply in
all material respects with all applicable provisions of the
Investment Company Act, Advisers Act, the Rules and Regulations and
the Advisers Act Rules and Regulations.
(xiv) The Trust is duly registered with the Commission under
the Investment Company Act as a closed-end, diversified management
investment company; and, to the best of our knowledge, no order of
suspension or revocation of such registration has been issued or
proceedings therefor initiated or threatened by the Commission.
(xv) To the best of our knowledge, no person is serving as an
officer, trustee or investment adviser of the Trust except in
accordance with the Investment Company Act and the Rules and
Regulations and the Investment Advisers Act and the Advisers Act
Rules and Regulations. Except as disclosed in the Registration
Statement and Prospectus (or any amendment or supplement to either of
them), to the best of our knowledge, no trustee of the Trust is an
"interested person" (as defined in the Investment Company Act) of the
Trust or an "affiliated person" (as defined in the Investment Company
Act) of a Dealer.
(xvi) All descriptions in the Registration Statement of
contracts and other documents to which the Trust is a party, insofar
as such descriptions purport to summarize certain provisions of the
contracts referred to therein, fairly summarize such provisions in
all material respects.
(xvii) To our knowledge, the Trust is not in violation of its
declaration of trust or by-laws and no default by the Trust exists in
the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement
or instrument that is described or referred to in the Registration
Statement or the Prospectus or filed or incorporated by reference as
an exhibit to the Registration Statement.
(xviii) No governmental approval, which has been obtained or
taken and is not in full force and effect, is required to authorize,
or is required in connection with, the execution and delivery of this
Dealer Group Agreement [and other transaction documents] by the Trust
or the consummation by the Trust of the transactions contemplated
hereby or for the offering, issuance or sale of the Shares.
(xix) The execution, delivery and performance of the Dealer
Group Agreement and the consummation of the transactions contemplated
in the Dealer Group Agreement and in the Registration Statement
(including the issuance and sale of the Shares and the use of the
proceeds from the sale of the Shares as described in the Prospectus
under the caption "Use of Proceeds") and compliance by the Trust with
its obligations under the Dealer Group Agreement do not and will not,
whether with or without the giving of notice or lapse of time or
both, conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section 3(a)(xii) of the Dealer Group
Agreement) under or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Trust
pursuant to any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or any other agreement or instrument,
known to us, to which the Trust is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Trust is subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Trust, or any applicable
law, statute, rule, regulation, judgment, order, writ or decree,
known to us, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Trust or any of its
properties, assets or operations.
(xx) The Dealer Group Agreement, the Management Agreement, the
Sub-Advisory Agreements, the Custodian Agreement, the Transfer Agency
Agreement and the Distribution Agreement have each been duly
authorized by all requisite action on the part of the Trust, executed
and delivered by the Trust, as of the dates noted therein. Assuming
due authorization, execution and delivery by the other parties
thereto with respect to the Custodian Agreement and the Transfer
Agency Agreement, each of the Management Agreement, the Sub-Advisory
Agreements, the Custodian Agreement, the Transfer Agency Agreement
and the Distribution Agreement constitutes a valid and binding
agreement of the Trust, enforceable in accordance with its terms,
except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(B) With respect to BAI and BFM:
(i) BAI and BFM have been duly organized and are validly
existing as corporations in good standing under the laws of the State
of Delaware.
(ii) BAI and BFM have full corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under the Dealer Group Agreement.
(iii) BAI and BFM are duly qualified as foreign corporations to
transact business and are in good standing in each other jurisdiction
in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not result in a Material
Adverse Effect.
(iv) Each Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by
the Advisers Act, the Advisers Act Rules and Regulations, the
Investment Company Act or the Rules and Regulations from acting under
the Management Agreement for the Trust as contemplated by the
Prospectus.
(v) The Dealer Group Agreement, the Management Agreement, the
Sub-Advisory Agreement and the Corporate Advisory Agreement have been
duly authorized, executed and delivered by the respective Adviser,
and the Management Agreement, the Sub-Advisory Agreement and the
Corporate Advisory Agreement each constitutes a valid and binding
obligation of the respective Adviser, enforceable in accordance with
its terms, except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and general
equitable principles (whether considered in a proceeding in equity or
at law).
(vi) To our knowledge, there are no legal or governmental
proceedings pending to which the Advisers are a party or to which any
property of the Advisers is subject that are required to be disclosed
in the Prospectus pursuant to Item 12 of Form N-2 under the
Investment Company Act that are not so disclosed.
(vii) To the best of our knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than
those described or referred to therein or filed or incorporated by
reference as exhibits thereto, and the descriptions thereof or
references thereto are correct in all material respects.
(viii) To the best of our knowledge, each Adviser is not in
violation of its certificate of incorporation, by-laws or other
organizational documents and no default by the Advisers exists in the
due performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument that is
described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(ix) No governmental approval, which has been obtained or taken
and is not in full force and effect, is required to authorize, or is
required in connection with, the execution and delivery of this
Dealer Group Agreement [and other transaction documents] by the
Advisers or the consummation by the Advisers of the transactions
contemplated hereby or for the offering, issuance or sale of the
Shares.
(x) The execution, delivery and performance of the Dealer Group
Agreement, the Management Agreement and the Sub-Advisory Agreement
and the consummation of the transactions contemplated in the Dealer
Group Agreement and in the Registration Statement and compliance by
the Advisers with their obligations under the Dealer Group Agreement,
the Management Agreement and the Sub-Advisory Agreement do not and
will not, whether with or without the giving of notice or lapse of
time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section 3(a)(xii) of the Dealer Group
Agreement) under or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Advisers
pursuant to any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or any other agreement or instrument,
known to us, to which the Advisers is a party or by which it or any
of them may be bound, or to which any of the property or assets of
the Advisers is subject (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not have a
Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the
Advisers, or any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to us, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Advisers or any of its properties, assets or operations.
(C) With respect to WMC:
(i) WMC has been duly organized and is validly existing as a
limited liability partnership in good standing under the laws of the
Commonwealth of Massachusetts.
(ii) WMC has full power and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the
Dealer Group Agreement.
(iii) WMC is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by
the Advisers Act, the Advisers Act Rules and Regulations, the
Investment Company Act or the Rules and Regulations from acting under
the [Management Agreement] for the Trust as contemplated by the
Prospectus.
(iv) The Dealer Group Agreement, the [Management Agreement],
the Sub-Advisory Agreement and the Corporate Advisory Agreement have
been duly authorized, executed and delivered by the respective
Adviser, and the Management Agreement, the Sub-Advisory Agreement and
the Corporate Advisory Agreement each constitutes a valid and binding
obligation of the respective Adviser, enforceable in accordance with
its terms, except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and general
equitable principles (whether considered in a proceeding in equity or
at law).
(v) (xi) To our knowledge, there are no legal or governmental
proceedings pending to which the Adviser is a party or to which any
property of the Adviser is subject that are required to be disclosed
in the Prospectus pursuant to Item 12 of Form N-2 under the
Investment Company Act that are not so disclosed.
(vi) To the best of our knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than
those described or referred to therein or filed or incorporated by
reference as exhibits thereto, and the descriptions thereof or
references thereto are correct in all material respects.
(vii) To the best of our knowledge, each Adviser is not in
violation of its certificate of incorporation, by-laws or other
organizational documents and no default by each Adviser exists in the
due performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument that is
described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(viii) No governmental approval, which has been obtained or
taken and is not in full force and effect, is required to authorize,
or is required in connection with, the execution and delivery of this
Dealer Group Agreement [and other transaction documents] by the
Adviser or the consummation by the Adviser of the transactions
contemplated hereby or for the offering, issuance or sale of the
Shares.
(ix) The execution, delivery and performance of the Dealer
Group Agreement [, Management Agreement] and Sub-Advisory Agreement
and the consummation of the transactions contemplated in the Dealer
Group Agreement and in the Registration Statement and compliance by
the Advisers with their obligations under the Dealer Group Agreement
[, Management Agreement] and Sub-Advisory Agreement do not and will
not, whether with or without the giving of notice or lapse of time or
both, conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section 3(a)(xii) of the Dealer Group
Agreement) under or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Adviser
pursuant to any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or any other agreement or instrument,
known to us, to which the Adviser is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Adviser is subject (except for such conflicts, breaches or defaults
or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Adviser, or any
applicable law, statute, rule, regulation, judgment, order, writ or
decree, known to us, of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Adviser or
any of its properties, assets or operations.
In addition, we have participated in the preparation of the
Registration Statement and the Prospectus and participated in discussions with
certain officers, trustees and employees of the Trust, representatives of [ ],
the independent accountants who examined the statement of assets and
liabilities of the Trust included or incorporated by reference in the
Registration Statement and the Prospectus, and you and your representatives
and we have reviewed certain Trust records and documents. While we have not
independently verified and are not passing upon, and do not assume any
responsibility for, the accuracy, completeness or fairness of the information
contained in the Registration Statement and the Prospectus, except to the
extent necessary to enable us to give the opinions with respect to the Trust
in paragraphs (A)(v), (xiv) and (xix), on the basis of such participation and
review, nothing has come to our attention that would lead us to believe that
the Registration Statement (except for financial statements, supporting
schedules and other financial data included therein or omitted therefrom, as
to which we do not express any belief), at the time such Registration
Statement became effective, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus (except
for financial statements, supporting schedules and other financial data
included therein or omitted therefrom, as to which we do not express any
belief), at the time the Prospectus was issued, or at the Closing Date,
included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
