EXHIBIT 99(h)
BlackRock Preferred Opportunity Trust
[ ] Common Shares of Beneficial Interest
UNDERWRITING AGREEMENT
February [ ], 2003
PRUDENTIAL SECURITIES INCORPORATED
J.J.B. XXXXXXXX, X.X. XXXXX, INC.
XXXXXX XXXXXXXXXX XXXXX LLC
QUICK & XXXXXX, INC.
RBC XXXX XXXXXXXX INC.
XXXX XXXX & CO.
XXXXX FARGO SECURITIES, LLC
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
BlackRock Preferred Opportunity Trust, a Delaware statutory trust (the
"Trust"), the Trust's investment adviser, BlackRock Advisors, Inc., a Delaware
corporation ("BAI"), and its investment sub-adviser, BlackRock Financial
Management, Inc., a Delaware corporation (BFM") (each, an "Adviser" and
together, the "Advisers"), hereby confirm their agreement with the several
underwriters named in Schedule 1 hereto (the "Underwriters"), for whom you have
been duly authorized to act as representatives (in such capacities, the
"Representatives"), as set forth below. If you are the only Underwriters, all
references herein to the Representatives shall be deemed to be to the
Underwriters.
1. SECURITIES. Subject to the terms and conditions herein contained, the
Trust proposes to issue and sell to the several Underwriters an aggregate of
[ ] shares (the "Firm Securities") of the Trust's common shares of beneficial
interest ("Common Shares"). The Trust also proposes to issue and sell to the
several Underwriters not more than [ ] additional Common Shares if requested
by the Representatives as provided in Section 3 of this Agreement. Any and all
Common Shares to be purchased by the Underwriters pursuant to such option are
referred to herein as the "Option Securities", and the Firm Securities and any
Option Securities are collectively referred to herein as the "Securities."
2. REPRESENTATIONS AND WARRANTIES OF THE TRUST AND THE ADVISERS. The
Trust and the Advisers severally represent and warrant to, and agree with, each
of the several Underwriters that:
(a) With respect to the Trust:
(i) A registration statement on Form N-2 (File No.
333-102518) with respect to the Securities, including a prospectus
subject to completion, has been filed by the Trust with the Securities
and Exchange Commission (the "Commission") under the Securities Act of
1933, as amended (the "Act"), and one or more amendments to such
registration statement may have been so filed. A Form N-8A
Notification of Registration (File No. 811-21280) (the "Notification
of Registration") was filed with the Commission on January 15, 2003
under the Investment Company Act of 1940, as amended (the
"Investment Company Act"). The Securities have been duly authorized
for listing, subject to official notice of issuance, on the New York
Stock Exchange ("NYSE"). After the execution of this Agreement, the
Trust will file with the Commission either (i) if such registration
statement, as it may have been amended, has been declared by the
Commission to be effective under the Act, a prospectus in the form
most recently included in an amendment to such registration statement
(or, if no such amendment shall have been filed, in such registration
statement), with such changes or insertions as are required by Rule
430A under the Act or permitted by Rule 497(h) under the Act as have
been provided to and approved by the Representatives prior to the
execution of this Agreement, or (ii) if such registration statement,
as it may have been amended, has not been declared by the Commission
to be effective under the Act, an amendment to such registration
statement, including a form of prospectus, a copy of which amendment
has been furnished to and approved by the Representatives prior to the
execution of this Agreement. The Trust may also file a related
registration statement with the Commission pursuant to Rule 462(b)
under the Act for the purpose of registering certain additional
Securities, which registration shall be effective upon filing with the
Commission. As used in this Agreement, the term "Original Registration
Statement" means such registration statement initially filed relating
to the Securities, as amended at the time when it was or is declared
effective, including all financial schedules and exhibits thereto and
including any information omitted therefrom pursuant to Rule 430A
under the Act and included in the Prospectus (as hereinafter defined);
the term "Rule 462(b) Registration Statement" means any registration
statement filed with the Commission pursuant to Rule 462(b) under the
Act (including the Registration Statement and any Preliminary
Prospectus or Prospectus incorporated therein at the time such
Registration Statement becomes effective); the term "Registration
Statement" includes the Original Registration Statement and any Rule
462(b) Registration Statement; the term "Preliminary Prospectus" means
each prospectus subject to completion filed with such registration
statement or any amendment thereto (including the prospectus subject
to completion, if any, included in the Registration Statement or any
amendment thereto at the time it was or is declared effective); the
term "Prospectus" means the prospectus first filed with the Commission
pursuant to Rule 497(b) or (h), as the case may be, under the Act or,
if applicable, as subsequently filed pursuant to Rule 497(d) under the
Act,
(ii) The Commission has not issued any order preventing or
suspending use of any Preliminary Prospectus. When any Preliminary
Prospectus was filed with the Commission it (i) contained all
statements required to be stated therein in accordance with, and
complied in all material respects with the requirements of, the Act
and the rules and regulations of the Commission thereunder and (ii)
did not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. When the Registration Statement or any amendment
thereto was or is declared effective, it (i) contained or will contain
all statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements
of, the Act and the rules and regulations of the Commission thereunder
and (ii) did not or will not include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading. When the Prospectus or any Term
Sheet that is a part thereof or any amendment or supplement to the
Prospectus is filed with the Commission pursuant to Rule 497(b) or (h)
under the Act, as the case may be, and if applicable, when
subsequently filed with the Commission pursuant to Rule 497(d) under
the Act (or, if the Prospectus or part thereof or such amendment or
supplement is not required to be so filed, when the Registration
Statement
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or the amendment thereto containing such amendment or supplement to
the Prospectus was or is declared effective) and on the Firm Closing
Date and any Option Closing Date (both as hereinafter defined), the
Prospectus, as amended or supplemented at any such time, (i) contained
or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects
with the requirements of, the Act and the rules and regulations of the
Commission thereunder and (ii) did not or will not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
foregoing provisions of this paragraph (b) do not apply to statements
or omissions made in any Preliminary Prospectus, the Registration
Statement or any amendment thereto or the Prospectus or any amendment
or supplement thereto in reliance upon and in conformity with written
information furnished to the Trust by any Underwriter through the
Representatives specifically for use therein.
(iii) When the Notification of Registration was filed with
the Commission, it (i) contained all statements required to be stated
therein in accordance with, and complied in all material respects with
the requirements of, the Investment Company Act and the rules and
regulations of the Commission thereunder and (ii) did not include any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading.
(iv) If the Trust has elected to rely on Rule 462(b) and the
Rule 462(b) Registration Statement has not been declared effective (i)
the Trust has filed a Rule 462(b) Registration Statement in compliance
with and that is effective upon filing pursuant to Rule 462(b) and has
received confirmation of its receipt and (ii) the Trust has given
irrevocable instructions for transmission of the applicable filing fee
in connection with the filing of the Rule 462(b) Registration
Statement, in compliance with Rule 111 promulgated under the Act or
the Commission has received payment of such filing fee.
(v) 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").
(vi) The information set forth in the Prospectus in the
Summary of Trust Expenses has been prepared in accordance with the
requirements of Form N-2 and to the extent estimated or projected,
such estimates or projections are reasonably believed to be attainable
and reasonably based.
(vii) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus, the Trust has not sustained any material loss or
interference with their respective businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or governmental
proceeding and there has not been any material adverse change, or any
development involving a prospective material adverse change, in the
condition (financial or otherwise), management, business prospects,
net worth, or results of the operations of the Trust, except in each
case as described in or contemplated by the Prospectus or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus.
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(viii) The Trust has been duly organized and is validly
existing as a business trust in good standing under the laws of the
State of Delaware and has business 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.
(ix) The Trust has no subsidiaries.
(x) 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.
(xi) 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 Rules and Regulations
and the Investment Advisers Act of 1940, as amended (the "Advisers
Act"), and the rules and regulations under the Advisers Act (the
"Advisers Act Rules and Regulations"). Except as disclosed in the
Registration Statement and the Prospectus (or any amendment or
supplement to either of them), no trustee of the 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 Underwriter.
(xii) The authorized, issued and outstanding 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 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 or exchanged by the Trust in
compliance with all applicable laws (including, without limitation,
federal and state securities laws); 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.
(xiii) The Securities to be purchased by the Underwriters from
the Trust have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered
by the Trust pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and fully paid
and non-assessable, except as provided for in the Trust's declaration
of trust. The Common Shares conform to all statements relating thereto
contained in the Prospectus and such description conforms to the
rights set forth in the instruments defining the same; no holder of
the Securities will be subject to personal liability by reason of
being such a holder; and the issuance of the Securities is not subject
to the preemptive or other similar rights of any securityholder of the
Trust.
(xiv) 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
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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 Agreement, the
Custodian Agreement and the Transfer Agent and Service Agreement
referred to in the Registration Statement (as used herein, the
"Management Agreement," the "Sub-Advisory Agreement", the "Custodian
Agreement" and the "Transfer Agency Agreement," respectively) and the
consummation of the transactions contemplated herein and in the
Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities
as described in the Prospectus under the caption "Use of Proceeds")
and compliance by the 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, the rules and
requirements of the NYSE, the rules and interpretations of the
National Association of Securities Dealers, Inc. ("NASD") or other
governmental body, stock exchange or securities association having
jurisdiction over 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.
(xv) No legal or governmental proceedings are pending to
which the Trust is a party or to which the property of the Trust is
subject that are required to be described in the Registration
Statement or the Prospectus and are not described therein (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), and no such proceedings have been threatened against the
Trust or with respect to any of their respective properties; and no
contract or other document is required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit
to the Registration Statement that is not described therein (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus) or filed as required.
(xvi) 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, the Investment Company Act or
by the Rules and Regulations which have not been so described and
filed as required.
(xvii) The Trust owns or possesses, or can acquire on
reasonable terms, all material patents, patent applications,
trademarks, service marks, trade names, licenses, copyrights and
proprietary or other confidential information currently employed by
them in connection with their respective businesses, and the Trust has
not received any notice of infringement of or conflict with asserted
rights of any third party with respect to any of the foregoing which,
singly or in the aggregate, if the subject of an unfavorable decision,
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ruling or finding, would result in a material adverse change in the
condition (financial or otherwise), business prospects, net worth or
results of operations of the Trust, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(xviii) 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 Securities 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 "Exchange Act"), or state securities laws.
(xix) The Trust possesses all certificates, authorizations
and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective
businesses, and the Trust has not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in
a material adverse change in the condition (financial or otherwise),
business prospects, net worth or results of operations of the Trust,
except as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus).
(xx) Any advertising, sales literature or other promotional
material (including "prospectus wrappers", "broker kits," "road show
slides," "road show scripts" and "electronic road show presentations")
authorized in writing by or prepared by the Trust or the Advisers used
in connection with the public offering of the Securities
(collectively, "sales material") does not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein 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, the Rules and Regulations and the rules and
interpretations of the NASD.
(xxi) 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.
(xxii) This Agreement, the Management Agreement, the
Sub-Advisory Agreement, the Custodian Agreement and the Transfer
Agency Agreement have each been duly authorized by all requisite
action on the part of the 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 Agreement, the Custodian
Agreement and the Transfer Agency 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,
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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).
(xxiii) There are no holders of securities of the Trust, who,
by reason of the filing of the Registration Statement, have the right
(and have not waived such right) to request the Trust to register
under the Act, or to include in the Registration Statement, securities
held by them.
(xxiv) The Securities have been duly authorized for listing,
upon notice of issuance, on the NYSE and the Trust's registration
statement on Form 8-A under the Exchange Act has become effective.
(xxv) Deloitte & Touche LLP, who have certified certain
financial statements of the Trust and delivered their report with
respect to the Statement of Assets and Liabilities included in the
Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), are
independent public accountants as required by the Act and the
applicable rules and regulations thereunder.
(xxvi) Except for the transactions contemplated herein or in
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus, the Trust has not directly or
indirectly (i) taken any action designed to cause or to result in, or
that constituted or which might reasonably be expected to constitute,
the stabilization or manipulation of the price of any security of the
Trust to facilitate the sale or resale of the Securities or (ii) since
the filing of the Registration Statement, (A) sold, bid for,
purchased, or paid anyone any compensation for soliciting purchases
of, the Securities or (B) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities
of the Trust.
(xxvii) The Trust has not distributed and, prior to the later
of (i) the Firm Closing Date and (ii) the completion of the
distribution of the Securities, will not distribute any offering
material in connection with the offering and sale of the Securities
other than the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto or any sales materials permitted by the Act.
(xxviii) The Trust is insured by insurers of recognized
financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they
are engaged; the Trust has not been refused any insurance coverage
sought or applied for; and the Trust has not any reason to believe
that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a
cost that would not materially and adversely affect the condition
(financial or otherwise), business prospects, net worth or results of
operations of the Trust, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(xxix) The Trust neither owns nor leases any real or personal
property.
(xxx) Each certificate signed by any officer of the Trust and
delivered to the Representatives or counsel for the Underwriters shall
be deemed to be a representation and warranty by the Trust to each
Underwriter as to the matters covered thereby.
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(xxxi) The Trust maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (1)
transactions are executed in accordance with management's general or
specific authorizations; (2) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability; (3) access to assets is permitted only in accordance
with management's general or specific authorization; and (4) the
recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(b) With respect to the Advisers:
(i) Each of the Advisers has been duly organized and is
validly existing and in good standing as a corporation under the laws
of the State of Delaware with full corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the 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 and the Sub-Advisory
Agreement 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, the Advisers Act,
the Rules and Regulations and the Advisers Act Rules and Regulations
and is true and correct 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 the Sub-Advisory
Agreement to which it is a party.
(v) This Agreement, the Management Agreement, the
Additional Compensation Agreement between Prudential Securities
Incorporated [and ] and BAI (the "Additional Compensation
Agreement") and the Sub-Advisory Agreement have each been duly
authorized, executed and delivered by each respective Adviser, and the
Management Agreement, the Additional Compensation Agreement and the
Sub-Advisory Agreement each constitute a valid and binding obligation
of each 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); and neither
the execution and delivery of this Agreement, the Management
Agreement, the Additional Compensation Agreement or the Sub-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
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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,
after due inquiry, by any law, order, decree, rule or regulation
applicable to it of any jurisdiction, court, federal or state
regulatory body, administrative agency, the NYSE, the NASD, 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 Additional Compensation
Agreement or the Sub-Advisory Agreement, except as have been obtained
or may be required under the Act, the Investment Company Act, the
Exchange Act, the Advisers Act or state securities laws.
(vi) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus, the Advisers have not sustained any material loss or
interference with their respective businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or governmental
proceeding and there has not been any material adverse change, or any
development involving a prospective material adverse change, in the
condition (financial or otherwise), management, business prospects,
net worth, or results of the operations of the Advisers, except in
each case as described in or contemplated by the Prospectus or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus.
(vii) No legal or governmental proceedings are pending to
which either of the Advisers is a party or to which the property of
either of the Advisers is subject that are required to be described in
the Registration Statement or the Prospectus and are not described
therein (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), and no such proceedings have been threatened
against either of the Advisers or with respect to any of their
respective properties; and no contract or other document is required
to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement that is not
described therein (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) or filed as required.
(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.
(ix) Except for the transactions contemplated herein or in
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus, the Advisers have not directly or
indirectly (i) taken any action designed to cause or to result in, or
that constituted or which might reasonably be expected to constitute,
the stabilization or manipulation of the price of any security of the
Trust to facilitate the sale or resale of the Securities or (ii) since
the filing of the Registration Statement, (A) sold, bid for,
purchased, or paid anyone any compensation for soliciting purchases
of, the Securities or (B) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities
of the Trust.
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3. PURCHASE, SALE AND DELIVERY OF THE SECURITIES. (a) On the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Trust agrees to issue
and sell to each of the Underwriters, and each of the Underwriters, severally
and not jointly, agrees to purchase from the Trust, at a purchase price of
$[ ] per share, the number of Firm Securities set forth opposite the name of
such Underwriter in Schedule 1 hereto. One or more certificates in definitive
form for the Firm Securities that the several Underwriters have agreed to
purchase hereunder, and in such denomination or denominations and registered in
such name or names as the Representatives request upon notice to the Trust at
least 48 hours prior to the Firm Closing Date, shall be delivered by or on
behalf of the Trust to the Representatives for the respective accounts of the
Underwriters, against payment by or on behalf of the Underwriters of the
purchase price therefor by wire transfer in same-day funds (the "Wired Funds")
to the account of the Trust. Such delivery of and payment for the Firm
Securities shall be made at the offices Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, 0 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 9:30 A.M., New York time, on February
[ ], 2003, or at such other place, time or date as the Representatives and the
Trust may agree upon or as the Representatives may determine pursuant to Section
9 hereof, such time and date of delivery against payment being herein referred
to as the "Firm Closing Date". The Trust will make such certificate or
certificates for the Firm Securities available for checking and packaging by the
Representatives at the offices in New York, New York of the Trust's transfer
agent or registrar or of Prudential Securities Incorporated at least 24 hours
prior to the Firm Closing Date.
(b) For the purpose of covering any over-allotments in connection
with the distribution and sale of the Firm Securities as contemplated by the
Prospectus, the Trust hereby grants to the several Underwriters an option to
purchase, severally and not jointly, the Option Securities. The purchase price
to be paid for any Option Securities shall be the same price per share as the
price per share for the Firm Securities set forth above in paragraph (a) of this
Section 3. The option granted hereby may be exercised as to all or any part of
the Option Securities from time to time within 45 days after the date of the
Prospectus (or, if such 45th day shall be a Saturday or Sunday or a holiday, on
the next business day thereafter when the New York Stock Exchange is open for
trading). The Underwriters shall not be under any obligation to purchase any of
the Option Securities prior to the exercise of such option. The Representatives
may from time to time exercise the option granted hereby by giving notice in
writing or by telephone (confirmed in writing) to the Trust setting forth the
aggregate number of Option Securities as to which the several Underwriters are
then exercising the option and the date and time for delivery of and payment for
such Option Securities. Any such date of delivery shall be determined by the
Representatives but shall not be earlier than two business days or later than
five business days after such exercise of the option and, in any event, shall
not be earlier than the Firm Closing Date. The time and date set forth in such
notice, or such other time on such other date as the Representatives and Trust
may agree upon or as the Representatives may determine pursuant to Section 9
hereof, is herein called the "Option Closing Date" with respect to such Option
Securities. Upon exercise of the option as provided herein, the Trust shall
become obligated to sell to each of the several Underwriters, and, subject to
the terms and conditions herein set forth, each of the Underwriters (severally
and not jointly) shall become obligated to purchase from the Trust, the same
percentage of the total number of the Option Securities as to which the several
Underwriters are then exercising the option as such Underwriter is obligated to
purchase of the aggregate number of Firm Securities, as adjusted by the
Representatives in such manner as they deem advisable to avoid fractional
shares. If the option is exercised as to all or any portion of the Option
Securities, one or more certificates in definitive form for such Option
Securities, and payment therefor, shall be delivered on the related Option
Closing Date in the manner, and upon the terms and conditions, set forth in
paragraph (a) of this Section 3, except that reference therein to the Firm
Securities and the Firm Closing Date shall be deemed, for purposes of this
paragraph (b), to refer to such Option Securities and Option Closing Date,
respectively.
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(c) The Trust hereby acknowledges that the wire transfer by or on
behalf of the Underwriters of the purchase price for any Shares does not
constitute closing of a purchase and sale of the Shares. Only execution and
delivery of a receipt for Shares by the Underwriters indicates completion of the
closing of a purchase of the Shares from the Trust. Furthermore, in the event
that the Underwriters wire funds to the Trust prior to the completion of the
closing of a purchase of Shares, the Trust hereby acknowledges that until the
Underwriters execute and deliver a receipt for the Shares, by facsimile or
otherwise, the Trust will not be entitled to the Wired Funds and shall return
the Wired Funds to the Underwriters as soon as practicable (by wire transfer of
same-day funds) upon demand. In the event that the closing of a purchase of
Shares is not completed and the Wired Funds are not returned by the Trust to the
Underwriters on the same day the Wired Funds were received by the Trust, the
Trust agrees to pay to the Underwriters in respect of each day the Wired Funds
are not returned by it, in same-day funds, interest on the amount of such Wired
Funds in an amount representing the Underwriters' cost of financing as
reasonably determined by Prudential Securities Incorporated.
(d) It is understood that any of you, individually and not as one of
the Representatives, may (but shall not be obligated to) make payment on behalf
of any Underwriter or Underwriters for any of the Securities to be purchased by
such Underwriter or Underwriters. No such payment shall relieve such Underwriter
or Underwriters from any of its or their obligations hereunder.
4. OFFERING BY THE UNDERWRITERS. Upon your authorization of the release
of the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale to the public upon the terms set forth in the Prospectus.
5. COVENANTS. The Trust and the Advisers jointly and severally covenant
and agree with each of the Underwriters that:
(a) The Trust, subject to Section 5(b), will comply with
the requirements of Rule 430A or Rule 434, as applicable, and will
notify the Representatives immediately, and confirm the notice in
writing, (i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the Prospectus
or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional
information, 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
Securities 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 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.
(b) The Trust will give the Representatives notice of its
intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or
any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective
or to the
- 11 -
Prospectus, will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file or use any such document to
which the Representatives or counsel for the Underwriters shall
object.
(c) If at any time when a prospectus is required by the Act
to be delivered in connection with sales of the Securities, any event
shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters 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 or the Rules and Regulations, the Trust will promptly
prepare and file with the Commission, at the Trust's expense, subject
to Section 5(b), 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 Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(d) The Trust will use its best efforts, in cooperation
with the Underwriters, to qualify the Securities for offering and sale
under the applicable securities laws of such states and other
jurisdictions of the United States as the Representatives may
designate and to maintain such qualifications in effect for a period
of not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement;
provided, however, that the Trust shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Securities have been so
qualified, the 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.
(e) The Trust will timely file such reports pursuant to the
Exchange Act as are necessary in order to make generally available to
its securityholders 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.
(f) The Trust will use the net proceeds received by it from
the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds".
(g) The Trust will use its reasonable best efforts to
effect the listing of the Securities on the NYSE, subject to notice of
issuance, concurrently with the effectiveness of the Registration
Statement.
(h) The Trust will not, directly or indirectly, without the
prior written consent of Prudential Securities Incorporated, on behalf
of the Underwriters, offer, sell, offer to sell, contract to sell,
pledge, grant any option to purchase or otherwise sell or dispose (or
announce any offer, sale, offer of sale, contract of sale, pledge,
grant of any
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option to purchase or other sale or disposition) of any shares of
Common Shares or any securities convertible into, or exchangeable or
exercisable for, shares of Common Shares for a period of 180 days
after the date hereof, except pursuant to this Agreement.
(i) The Trust, during the period when the Prospectus is
required to be delivered under the Act or the Exchange Act, will file
all documents required to be filed with the Commission pursuant to the
Investment Company Act and the Exchange Act within the time periods
required by the Investment Company Act and the Rules and Regulations
and the Exchange Act and the rules and regulations of the Commission
thereunder, respectively.
(j) The Trust will comply with the requirements of
Subchapter M of the Code to qualify as a regulated investment company
under the Code.
(k) The Trust will not (a) take, directly or indirectly,
any action designed to cause or to result in, or that might reasonably
be expected to constitute, the stabilization or manipulation of the
price of any security of the Trust to facilitate the sale or resale of
the Securities, and (b) until the Firm Closing Date, or the Option
Closing Date, if any, (i) sell, bid for or purchase the Securities or
pay any person any compensation for soliciting purchases of the
Securities or (ii) pay or agree to pay to any person any compensation
for soliciting another to purchase any other securities of the Trust .
(l) The Trust will, without charge, provide (i) to the
Representatives and to counsel for the Underwriters a conformed copy
of the registration statement originally filed with respect to the
Securities and each amendment thereto (in each case including exhibits
thereto) or any Rule 462(b) Registration Statement, certified by the
Secretary or an Assistant Secretary of the Trust to be true and
complete copies thereof as filed with the Commission by electronic
transmission, (ii) to each other Underwriter, a conformed copy of such
registration statement or any Rule 462(b) Registration Statement and
each amendment thereto (in each case without exhibits thereto) and
(iii) so long as a prospectus relating to the Securities is required
to be delivered under the Act, as many copies of each Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto as
the Representatives may reasonably request; without limiting the
application of clause (iii) of this sentence, the Trust, not later
than (A) 6:00 P.M., New York City time, on the date of determination
of the public offering price, if such determination occurred at or
prior to 10:00 A.M., New York City time, on such date or (B) 2:00
P.M., New York City time, on the business day following the date of
determination of the public offering price, if such determination
occurred after 10:00 A.M., New York City time, on such date, will
deliver to the Underwriters, without charge, as many copies of the
Prospectus and any amendment or supplement thereto as the
Representatives may reasonably request for purposes of confirming
orders that are expected to settle on the Firm Closing Date. The
copies of the Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to
the extent permitted by Regulation S-T.
(m) During a period of five years from the effective date
of the Registration Statement, the Trust will furnish to the
Representatives copies of all reports and other
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communication (financial or other) furnished by the Trust to its
shareholders and, as soon as available, copies of any reports or
financial statements furnished or filed by the Trust to or with the
Commission or any national securities exchange on which any class of
securities of the Trust may be listed; PROVIDED, that the Trust shall
not be required to furnish the Representatives copies of any reports
or financial statements furnished or filed by the Trust to or with the
Commission that are publicly available on XXXXX free of charge.
(n) If at any time during the 25-day period after the
Registration Statement becomes effective or the period prior to the
Option Closing Date, any rumor, publication or event relating to or
affecting the Trust shall occur as a result of which in your opinion
the market price of the Common Shares has been or is likely to be
materially affected (regardless of whether such rumor, publication or
event necessitates a supplement to or amendment of the Prospectus),
the Trust will, after notice from you advising the Trust to the effect
set forth above, forthwith prepare, consult with you concerning the
substance of, and disseminate a press release or other public
statement, reasonably satisfactory to you, responding to or commenting
on such rumor, publication or event.
(o) If the Trust elects to rely on Rule 462(b), the Trust
shall both file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) and pay the applicable fees
in accordance with Rule 111 promulgated under the Act by the earlier
of (i) 10:00 P.M. Eastern time on the date of this Agreement and (ii)
the time confirmations are sent or given, as specified by Rule
462(b)(2).
(p) The Trust shall cause the Securities to be duly
authorized for listing by the NYSE prior to the Firm Closing Date.
6. EXPENSES. The Trust will pay all costs and expenses incident to the
performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 11 hereof, including all costs and expenses incident to (i)
the printing or other production of documents with respect to the transactions,
including any costs of printing the registration statement originally filed with
respect to the Securities and any amendment thereto, any Rule 462(b)
Registration Statement, any Preliminary Prospectus and the Prospectus and any
amendment or supplement thereto, this Agreement and any blue sky memoranda, (ii)
all arrangements relating to the delivery to the Underwriters of copies of the
foregoing documents, (iii) the fees and disbursements of the counsel, the
accountants and any other experts or advisers retained by the Trust, (iv)
preparation, issuance and delivery to the Underwriters of any certificates
evidencing the Securities, including transfer agent's and registrar's fees, (v)
the qualification of the Securities under state securities and blue sky laws,
including filing fees and fees and disbursements of counsel for the Underwriters
relating thereto, (vi) the filing fees of the Commission and the National
Association of Securities Dealers, Inc. relating to the Securities, (vii) the
listing of the Securities on the NYSE, (viii) any meetings with prospective
investors in the Securities (other than as shall have been specifically approved
by the Representatives to be paid for by the Underwriters) and (ix) advertising
relating to the offering of the Securities (other than as shall have been
specifically approved by the Representatives to be paid for by the
Underwriters). If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 7 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 11 hereof or because of any failure, refusal or inability on
the part of the Trust to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder other than by reason of a
default by any of the Underwriters, the Trust will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including counsel fees and
disbursements) that shall have been incurred by them in connection with the
proposed purchase and sale
- 14 -
of the Securities. The Trust shall not in any event be liable to any of the
Underwriters for the loss of anticipated profits from the transactions covered
by this Agreement.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Trust and the Advisers contained herein as
of the date hereof and as of the Firm Closing Date, as if made on and as of the
Firm Closing Date, to the accuracy of the statements of the officers of the
Trust and the Advisers made pursuant to the provisions hereof, to the
performance by the Trust and the Advisers of their covenants and agreements
hereunder and to the following additional conditions:
(a) If the Original Registration Statement or any amendment thereto
filed prior to the Firm Closing Date has not been declared effective as of the
time of execution hereof, the Original Registration Statement or such amendment
and, if the Trust has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have been declared effective not later than the
earlier of (i) 11:00 A.M., New York time, on the date on which the amendment to
the registration statement originally filed with respect to the Securities or to
the Registration Statement, as the case may be, containing information regarding
the initial public offering price of the Securities has been filed with the
Commission and (ii) the time confirmations are sent or given as specified by
Rule 462(b)(2), or with respect to the Original Registration Statement, or such
later time and date as shall have been consented to by the Representatives; if
required, the Prospectus or any Term Sheet that constitutes a part thereof and
any amendment or supplement thereto shall have been filed with the Commission in
the manner and within the time period required by Rules 434 and 497 under the
Act; no stop order suspending the effectiveness of the Registration Statement or
any amendment thereto shall have been issued, and no proceedings for that
purpose shall have been instituted or threatened or, to the knowledge, after due
inquiry, of the Trust or the Representatives, shall be contemplated by the
Commission; and the Trust shall have complied with any request of the Commission
for additional information (to be included in the Registration Statement or the
Prospectus or otherwise).
(b) The Representatives shall have received an opinion, dated the
Firm Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Trust and the Advisers, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letters for each
of the other Underwriters substantially to the effect set forth in EXHIBIT A
hereto and to such further effect as counsel to the Underwriters may reasonably
request.
(c) The Representatives shall have received an opinion, dated the
Firm Closing Date, of Xxxxxxxx Chance US LLP, counsel for the Underwriters, with
respect to the issuance and sale of the Firm Securities, the Registration
Statement and the Prospectus, and such other related matters as the
Representatives may reasonably require, and the Trust shall have furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(d) The Representatives shall have received from Deloitte & Touche
LLP a letter or letters dated, respectively, the date hereof and the Firm
Closing Date, in form and substance satisfactory to the Representatives, to the
effect that:
(i) they are independent accountants with respect to the
Trust within the meaning of the Act and the applicable rules and
regulations thereunder;
(ii) in their opinion, the Statement of Assets and
Liabilities audited by them and included in the Registration Statement
and the Prospectus comply in form in all
- 15 -
material respects with the applicable accounting requirements of the
Act and the related published rules and regulations;
(iii) on the basis of carrying out certain specified
procedures (which do not constitute an examination made in accordance
with generally accepted auditing standards) that would not necessarily
reveal matters of significance with respect to the comments set forth
in this paragraph (iii), a reading of the minute books of the
shareholders, the board of directors and any committees thereof of the
Trust, and inquiries of certain officials of the Trust who have
responsibility for financial and accounting matters, nothing came to
their attention that caused them to believe that at a specific date
not more than five business days prior to the date of such letter,
there were any changes in the capital stock or long-term debt of the
Trust or any decreases in not current assets or stockholders' equity
of the Trust, in each case compared with amounts shown on the
Statement of Assets and Liabilities included in the Registration
Statement; and
(iv) they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages
and financial information that are derived from the general accounting
records of the Trust and are included in the Registration Statement
and the Prospectus under the captions "Summary of Trust Expenses," and
agree with the Trust's calculation of such data as set forth in the
Prospectus.
In the event that the letters referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that (A) such letters shall be accompanied by a
written explanation of the Trust as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (B) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as amended as of the
date hereof.
References to the Registration Statement and the Prospectus in this
paragraph (d) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(e) The Representatives shall have received a certificate, dated the
Firm Closing Date, of the principal executive officer and the principal
financial or accounting officer of the Trust to the effect that:
(i) the representations and warranties of the Trust in this
Agreement are true and correct as if made on and as of the Firm
Closing Date; the Registration Statement, as amended as of the Firm
Closing Date, does not include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein not misleading, and the Prospectus, as amended or supplemented
as of the Firm Closing Date, does not include any untrue statement of
a material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and the Trust has
performed all covenants and agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the Firm Closing
Date;
- 16 -
(ii) no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and
no proceedings for that purpose have been instituted or threatened or,
to the best of the Trust's knowledge, after due inquiry, are
contemplated by the Commission; and
(iii) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
the Trust has not sustained any material loss or interference with its
business or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding, and there has not
been any material adverse change, or any development involving a
prospective material adverse change, in the condition (financial or
otherwise), management, business prospects, net worth or results of
operations of the Trust, except in each case as described in or
contemplated by the Prospectus (exclusive of any amendment or
supplement thereto).
(f) The Representatives shall have received a certificate, dated the
Firm Closing Date, of the principal executive officer and the principal
financial or accounting officer of BAI to the effect that:
(i) the representations and warranties of BAI in this
Agreement are true and correct as if made on and as of the Firm
Closing Date, and the description of BAI and its business included in
the Prospectus, as amended or supplemented as of the Firm Closing
Date, does not include any untrue statement or a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and
no proceedings for that purpose have been instituted or threatened or,
to the best of BAI's knowledge, after due inquiry, are contemplated by
the Commission; and
(iii) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
BAI has not sustained any material loss or interference with its
business or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding, and there has not
been any material adverse change, or any development involving a
prospective material adverse change, in the condition (financial or
otherwise), management, business prospects, net worth or results of
operations of BAI, except in each case as described in or contemplated
by the Prospectus (exclusive of any amendment or supplement thereto).
(g) The Representatives shall have received a certificate, dated the
Firm Closing Date, of the principal executive officer and the principal
financial or accounting officer of BFM to the effect that:
(i) the representations and warranties of BFM in this
Agreement are true and correct as if made on and as of the Firm
Closing Date, and the description of BFM and its business included in
the Prospectus, as amended or supplemented as of the Firm Closing
Date, does not include any untrue statement or a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and
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(ii) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
BFM has not sustained any material loss or interference with its
business or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding, and there has not
been any material adverse change, or any development involving a
prospective material adverse change, in the condition (financial or
otherwise), management, business prospects, net worth or results of
operations of BFM, except in each case as described in or contemplated
by the Prospectus (exclusive of any amendment or supplement thereto).
(h) On or before the Firm Closing Date, the Representatives and
counsel for the Underwriters shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Trust and any Adviser.
(i) Prior to the commencement of the offering of the Securities, the
Securities shall have been approved for listing on the NYSE, subject to official
notice of issuance.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Trust shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and pay
for any Option Securities shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Firm Securities, except that all references
to the Firm Securities and the Firm Closing Date shall be deemed to refer to
such Option Securities and the related Option Closing Date, respectively.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Trust and the Advisers
jointly and severally agree to indemnify and hold harmless each Underwriter,
their affiliates, their respective directors, officers, agents and employees of
the Underwriters or any of the Underwriters' affiliates, and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such controlling
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of,
caused by, related to, based upon or arising out of or in connection with:
(i) any untrue statement or alleged untrue statement made
by the Trust or any Adviser in Section 2 of this Agreement,
(ii) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, any sales material or (B) any
application or other document, or any amendment or supplement thereto,
executed by the Trust or any Adviser or based upon written information
furnished by or on behalf of the Trust or any Adviser filed in any
jurisdiction in order to qualify the Securities under the securities
or blue sky laws thereof or filed with the Commission or any
securities association or securities exchange (each an "Application"),
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment
- 18 -
or supplement thereto, or any Application a material fact required to
be stated therein or necessary to make the statements therein not
misleading; or
(iv) any untrue statement or alleged untrue statement of any
material fact contained in any audio or visual materials, including,
without limitation, slides, videos, films and tape recordings used in
connection with the marketing of the Securities, including, without
limitation, statements communicated to securities analysts employed by
the Underwriters,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; PROVIDED, however, that the Trust will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement or
any amendment thereto, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto or any Application in reliance upon and in
conformity with written information furnished to the Trust by such Underwriter
through the Representatives specifically for use therein; and PROVIDED, FURTHER,
that the Trust will not be liable to any Underwriter or any person controlling
such Underwriter with respect to any such untrue statement or omission made in
any Preliminary Prospectus that is corrected in the Prospectus (or any amendment
or supplement thereto) if the person asserting any such loss, claim, damage or
liability purchased Securities from such Underwriter but was not sent or given a
copy of the Prospectus (as amended or supplemented) at or prior to the written
confirmation of the sale of such Securities to such person in any case where
such delivery of the Prospectus (as amended or supplemented) is required by the
Act, unless such failure to deliver the Prospectus (as amended or supplemented)
was a result of noncompliance by the Trust with Section 5(d) and (e) of this
Agreement]. This indemnity agreement will be in addition to any liability which
the Trust or any Adviser may otherwise have. The Trust will not, without the
prior written consent of the Underwriter or Underwriters purchasing, in the
aggregate, more than fifty percent (50%) of the Securities, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim,
action, suit or proceeding in respect of which indemnification may be sought
hereunder (whether or not any such Underwriter or any person who controls any
such Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act is a party to such claim, action, suit or proceeding), unless
such settlement, compromise or consent includes an unconditional release of all
of the Underwriters and such controlling persons from all liability arising out
of such claim, action, suit or proceeding.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Trust and the Advisers, each of their directors, each of their
officers who signed the Registration Statement and each person, if any, who
controls the Trust or the Advisers within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Trust or any such director, officer or controlling
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or any Application or (ii) the omission or the alleged omission to
state therein a material fact required to be stated in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, or any Application or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Trust by such Underwriter through the
Representatives specifically for use therein; and, subject to the limitation set
- 19 -
forth immediately preceding this clause, will reimburse, as incurred, any legal
or other expenses reasonably incurred by the Trust, either of the Advisers, or
any such director, officer or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or any action
in respect thereof. This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
(c) In addition to the foregoing indemnification, the Trust and the
Advisers also, jointly and severally, agree to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the Exchange Act, against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 6(a), as limited by the proviso set forth
therein, with respect to any sales material.
(d) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 8. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party;
PROVIDED, HOWEVER, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 8 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Representatives in the case of
paragraph (a) of this Section 8, representing the indemnified parties under such
paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the consent
of the indemnifying party.
(e) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 8 is unavailable or insufficient, for
any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the
- 20 -
offering of the Securities or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, not only such relative benefits
but also the relative fault of the indemnifying party or parties on the one hand
and the indemnified party on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Trust and the Advisers, on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total proceeds from the offering
(before deducting expenses) received by the Trust bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault of
the parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Trust,
the Advisers or the Underwriters, the parties' relative intents, knowledge,
access to information and opportunity to correct or prevent such statement or
omission, and any other equitable considerations appropriate in the
circumstances. The Trust, the Advisers and the Underwriters agree that it would
not be equitable if the amount of such contribution were determined by pro rata
or per capita allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take into
account the equitable considerations referred to above in this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Underwriter shall
be obligated to make contributions hereunder that in the aggregate exceed the
total public offering price of the Securities purchased by such Underwriter
under this Agreement, less the aggregate amount of any damages that such
Underwriter has otherwise been required to pay in respect of the same or any
substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among Underwriters shall be governed by the provisions
of the Prudential Securities Incorporated Master Agreement Among Underwriters.
For purposes of this paragraph (d), each of the Underwriters' affiliates, their
respective directors, officers, agents, employees and each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each director of the Trust, each officer of the Trust who
signed the Registration Statement and each person, if any, who controls the
Trust or the Advisers within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, shall have the same rights to contribution as the Trust or
the Advisers, as the case may be.
EACH OF PRUDENTIAL SECURITIES INCORPORATED AND THE TRUST (ON ITS OWN BEHALF AND,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, SUIT, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) RELATING TO OR
ARISING OUT OF THIS INDEMNIFICATION.
9. DEFAULT OF UNDERWRITERS. If one or more Underwriters default in their
obligations to purchase Firm Securities or Option Securities hereunder and the
aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or Option
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase. If one or more Underwriters so default with respect to an aggregate
number of Securities that is more than ten
- 21 -
percent of the aggregate number of Firm Securities or Option Securities, as the
case may be, to be purchased by all of the Underwriters at such time hereunder,
and if arrangements satisfactory to the Representatives are not made within 36
hours after such default for the purchase by other persons (who may include one
or more of the non-defaulting Underwriters, including the Representatives) of
the Securities with respect to which such default occurs, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter, the
Trust or the Advisers other than as provided in Section 10 hereof. In the event
of any default by one or more Underwriters as described in this Section 9, the
Representatives shall have the right to postpone the Firm Closing Date or the
Option Closing Date, as the case may be, established as provided in Section 3
hereof for not more than seven business days in order that any necessary changes
may be made in the arrangements or documents for the purchase and delivery of
the Firm Securities or Option Securities, as the case may be. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 9. Nothing herein shall relieve any defaulting
Underwriter from liability for its default.
10. SURVIVAL. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Trust and the Advisers, their
officers and the several Underwriters set forth in this Agreement or made by or
on behalf of them, respectively, pursuant to this Agreement shall remain in full
force and effect, regardless of (i) any investigation made by or on behalf of
the Trust, the Advisers, any of their officers or directors, any Underwriter or
any controlling person referred to in Section 8 hereof and (ii) delivery of and
payment for the Securities. The respective agreements, covenants, indemnities
and other statements set forth in Sections 6 and 8 hereof shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement.
11. TERMINATION. (a) This Agreement may be terminated with respect to the
Firm Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Trust given prior to the Firm Closing Date or
the related Option Closing Date, respectively, in the event that the Trust or
the Advisers shall have failed, refused or been unable to perform all
obligations and satisfy all conditions on its part to be performed or satisfied
hereunder at or prior thereto or, if at or prior to the Firm Closing Date or
such Option Closing Date, respectively,
(i) the Trust or the Advisers shall have, in the sole
judgment of the Representatives, sustained any material loss or
interference with their respective businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or governmental
proceeding or there shall have been any material adverse change, or
any development involving a prospective material adverse change
(including without limitation a change in management or control of the
Trust or the Advisers), in the condition (financial or otherwise),
business prospects, net worth or results of operations of the Trust or
the Advisers, as the case may be, except in each case as described in
or contemplated by the Prospectus (exclusive of any amendment or
supplement thereto);
(ii) trading in the Common Shares shall have been suspended
by the Commission or the NYSE or trading in securities generally on
the NYSE or Nasdaq National Market shall have been suspended or
minimum or maximum prices shall have been established on such
exchange;
(iii) a banking moratorium shall have been declared by New
York or United States authorities; or
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other
- 22 -
insurrection or armed conflict involving the United States or (C) any
other calamity or crisis or material adverse change in general
economic, political or financial conditions having an effect on the
U.S. financial markets that, in the sole judgment of the
Representatives, makes it impractical or inadvisable to proceed with
the public offering or the delivery of the Securities as contemplated
by the Registration Statement, as amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 11 shall
be without liability of any party to any other party except as provided in
Section 10 hereof.
12. INFORMATION SUPPLIED BY UNDERWRITERS. The statements set forth in the
last paragraph on the front cover page and under the heading "Underwriting" in
any Preliminary Prospectus or the Prospectus (to the extent such statements
relate to the Underwriters) constitute the only information furnished by any
Underwriter through the Representatives to the Trust for the purposes of
Sections 2(b) and 8 hereof. The Underwriters confirm that such statements (to
such extent) are correct.
13. NOTICES. All communications hereunder shall be in writing and, if sent
to any of the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to Prudential Securities
Incorporated, Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Equity Transactions Group; and if sent to the Trust, shall be
delivered or sent by mail, telex or facsimile transmission and confirmed in
writing to BlackRock Preferred Opportunity Trust, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000; if sent to the Advisers, shall be mailed, delivered or
telegraphed and confirmed in writing to BlackRock Financial Management, Inc. at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxxxxxx.
00. SUCCESSORS. This Agreement shall inure to the benefit of and shall be
binding upon the several Underwriters, the Trust, the Advisers and their
respective successors, assigns, legal representatives, affiliates, their
respective directors, officers, controlling persons (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act), if any, agents and
employees and nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any other person any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (i) the indemnities of the Trust
and the Advisers contained in Section 8 of this Agreement shall also be for the
benefit of any person or persons who control any Underwriter within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act and (ii) the
indemnities of the Underwriters contained in Section 8 of this Agreement shall
also be for the benefit of the directors of the Trust, the officers of the Trust
who have signed the Registration Statement and any person or persons who control
the Trust or the Advisers within the meaning of Section 15 of the Act or Section
20 of the Exchange Act. No purchaser of Securities from any Underwriter shall be
deemed a successor because of such purchase.
15. APPLICABLE LAW. The validity and interpretation of this Agreement, and
the terms and conditions set forth herein, shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
provisions relating to conflicts of laws.
16. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. All judicial
proceedings arising out of or relating to this Agreement may be brought in any
state or federal court of competent jurisdiction situated in the Borough of
Manhattan in the City of New York, New York, and by execution and delivery of
this Agreement, the Trust and the Advisers accepts for itself and in connection
with its properties, generally and unconditionally, the nonexclusive
jurisdiction of the aforesaid courts and waives and defense of forum non
conveniens and irrevocably agrees to be bound by any judgment rendered thereby
in
- 23 -
connection with this Agreement. Each of the Trust and the Advisers designates
and appoints CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, and such
other persons as may hereafter be selected by each of the Trust and the Advisers
irrevocably agreeing in writing to so serve, as its agent to receive on its
behalf service of all process in any such proceedings in any such court, such
service being hereby acknowledged by each of the Trust and the Adviser to be
effective and binding service in every respect. A copy of any such process so
served shall be mailed by registered mail to each of the Trust, and the
Advisers, as applicable, at its address provided in Section 13 hereof; PROVIDED,
HOWEVER, that, unless otherwise provided by applicable law, any failure to mail
such copy shall not affect the validity of service of such process. If any agent
appointed by each of the Trust and the Advisers refuses to accept service, each
of the Trust and the Advisers hereby agrees that service of process sufficient
for personal jurisdiction in any action against each of the Trust and the
Advisers in the State of New York may be made by registered or certified mail,
return receipt requested, to each of the Trust and the Advisers, as applicaqble,
at its address provided in Section 13 hereof, and each of the Trust and the
Advisers hereby acknowledges that such service shall be effective and binding in
every respect. Nothing herein shall affect the right to serve process in any
other manner permitted by law or shall limit the right of any Underwriter to
bring proceedings against each of the Trust and the Advisers in the courts of
any other jurisdiction.
17. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
- 24 -
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding the Trust, each
Adviser and each of the several Underwriters.
Very truly yours,
BLACKROCK PREFERRED OPPORTUNITY TRUST
By:
-------------------------------
[Name]
[Title]
BLACKROCK ADVISORS, INC.
By:
-------------------------------
[Name]
[Title]
BLACKROCK FINANCIAL MANAGEMENT, INC.
By:
-------------------------------
[Name]
[Title]
- 25 -
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
J.J.B. XXXXXXXX, X.X. XXXXX, INC.
XXXXXX XXXXXXXXXX XXXXX LLC
QUICK & XXXXXX, INC.
RBC XXXX XXXXXXXX INC.
XXXX XXXX & CO.
XXXXX FARGO SECURITIES, LLC
By: PRUDENTIAL SECURITIES INCORPORATED
By:
----------------------------
Xxxx-Xxxxxx Canfin
Managing Director
For itself and on behalf of the Representatives.
- 26 -
SCHEDULE 1
UNDERWRITERS
Number of Firm
Underwriter Securities to be Purchased
----------- --------------------------
Prudential Securities Incorporated...................
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. ...................
Xxxxxx Xxxxxxxxxx Xxxxx LLC .........................
Quick & Xxxxxx, Inc. ................................
RBC Xxxx Xxxxxxxx Inc. ..............................
Xxxx Xxxx & Co. .....................................
Xxxxx Fargo Securities, LLC..........................
Total ..............
S-1
Exhibit A
FORM OF OPINION OF TRUST'S AND ADVISERS'
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 7(b)
(A) With respect to the Trust:
(i) The Trust has been duly organized and is validly
existing as a business trust in good standing under the laws of the
State of Delaware.
(ii) The Trust has business 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 Underwriting 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 Trust does not have any subsidiaries.
(v) 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" (except for
subsequent issuances, if any, pursuant to the Underwriting Agreement);
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 or exchanged by the Trust in
compliance with all applicable laws (including, without limitation,
federal and state securities laws); the Common Shares conform as to
legal matters to all statements relating thereto contained in the
Prospectus and such description conforms to the rights set forth in
the instruments defining the same; and none of the outstanding shares
of beneficial interest of the Trust was issued in violation of the
preemptive or other similar rights of any securityholder of the Trust.
(vi) The Securities to be purchased by the Underwriters from
the Trust have been duly authorized for issuance and sale to the
Underwriters pursuant to the Underwriting Agreement and, when issued
and delivered by the Trust pursuant to the Underwriting Agreement
against payment of the consideration set forth in the Underwriting
Agreement, will be validly issued and fully paid and non-assessable,
except as provided for in the Trust's declaration of trust, and no
holder of the Securities is or will be subject to personal liability
by reason of being such a holder.
(vii) The issuance of the Securities is not subject to
preemptive or other similar rights of any securityholder of the Trust.
(viii) The Underwriting Agreement has been duly authorized,
executed and delivered by the Trust.
A-1
(ix) 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, to the best of our knowledge, after due inquiry, no
stop order suspending the effectiveness of the Registration Statement
or any Rule 462(b) Registration Statement has been issued under the
Act, and, to the best of our knowledge, after due inquiry, no 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 threatened by the
Commission.
(x) 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.
(xi) If Rule 434 has been relied upon, the Prospectus was
not "materially different," as such term is used in Rule 434, from the
prospectus included in the Registration Statement at the time it
became effective.
(xii) The form of certificate used to evidence the Common
Shares complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the declaration of
trust and by-laws of the Trust and the requirements of the NYSE.
(xiii) There is not pending or, to the best of our knowledge,
after due inquiry, threatened any action, suit, proceeding, inquiry or
investigation, to which the Trust is a party, or to which the property
of the Trust is subject, before or brought by any court or
governmental agency or body, domestic or foreign, which might
reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect
the properties or assets of the Trust or the consummation of the
transactions contemplated in the Underwriting Agreement or the
performance by the Trust of its obligations thereunder.
(xiv) The information in the Prospectus under "Description of
Shares" and "Tax Matters" and in the Registration Statement under Item
29 (Indemnification), to the extent that it constitutes matters of
law, summaries of legal matters, the Trust's declaration of trust and
by-laws or legal proceedings, or legal conclusions, has been reviewed
by us and is correct in all respects.
(xv) Each of the Management Agreement, the Sub-Advisory
Agreement, the Custodian Agreement, the Transfer Agency Agreement and
the Underwriting 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.
A-2
(xvi) 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, to
the best of our knowledge, after due inquiry, threatened by the
Commission.
(xvii) To the best of our knowledge, after due inquiry, 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, after due inquiry, 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 an Underwriter.
(xviii) There are no statutes or regulations that are required
to be described in the Prospectus that are not described as required.
(xix) All descriptions in the Registration Statement of
contracts and other documents to which the Trust is a party are
accurate in all respects. To the best of our knowledge, after due
inquiry, 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
respects.
(xx) To the best of our knowledge, after due inquiry, 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.
(xxi) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency (other than under the Act, the
Exchange Act, the Investment Company Act and the Rules and
Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various jurisdictions, as to which
we need express no opinion) is necessary or required in connection
with the due authorization, execution and delivery of the Underwriting
Agreement or for the offering, issuance or sale of the Securities or
the consummation of the transactions contemplated by this Agreement.
(xxii) The execution, delivery and performance of the
Underwriting Agreement and the consummation of the transactions
contemplated in the Underwriting Agreement and in the Registration
Statement (including the issuance and sale of the Securities and the
use of the proceeds from the sale of the Securities as described in
the Prospectus under the caption "Use of Proceeds") and compliance by
the Trust with its obligations under the Underwriting Agreement do not
and will not, whether with or without the giving of notice or lapse of
time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section 1(a)(xii) of the Underwriting
Agreement)
A-3
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.
(xxiii) The Underwriting Agreement, the Management Agreement,
the Sub-Advisory Agreement, the Custodian Agreement and the Transfer
Agency Agreement have each been duly authorized by all requisite
action on the part of the 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 Agreement, the Custodian
Agreement and the Transfer Agency 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 the Advisers:
(i) Each Adviser has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
(ii) Each Adviser has full corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under the Underwriting Agreement.
(iii) Each Adviser is duly qualified as a foreign corporation
to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not result in a
material adverse effect.
(iv) 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 Underwriting Agreement, the Management Agreement,
the Additional Compensation Agreement, and the Sub-Advisory Agreement
have been duly authorized, executed and delivered by the respective
Adviser, and the Management Agreement, the Additional Compensation
Agreement and the Sub-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
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creditors' rights generally and general equitable principles (whether
considered in a proceeding in equity or at law).
(vi) There is not pending or, to the best of our knowledge,
after due inquiry, threatened any action, suit, proceeding, inquiry or
investigation, to which the Advisers are a party, or to which the
property of any of the Advisers is subject, before or brought by any
court or governmental agency or body, domestic or foreign, which might
reasonably be expected to result in any material adverse change in the
condition, financial or otherwise, in the earnings, business affairs
or business prospects of any of the Advisers, materially and adversely
affect the properties or assets of any of the Advisers or materially
impair or adversely affect the ability of any of the Advisers to
function as an investment adviser or perform its obligations under the
Management Agreement or the Sub-Advisory Agreement, or which is
required to be disclosed in the Registration Statement or the
Prospectus.
(vii) To the best of our knowledge, after due inquiry, 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 respects.
(viii) To the best of our knowledge, after due inquiry, each
Adviser is not in violation of its certificate of incorporation,
by-laws or other organizational documents and no default by any of 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 filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other than
under the Act, the Investment Company Act and the Rules and
Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various jurisdictions, as to which
we need express no opinion), the NYSE, the NASD, or other governmental
body, stock exchange or securities association having jurisdiction
over any of the Advisers is necessary or required in connection with
the due authorization, execution and delivery of the Underwriting
Agreement.
(x) The execution, delivery and performance of the
Underwriting Agreement and the consummation of the transactions
contemplated in the Underwriting Agreement and in the Registration
Statement and compliance by each of the Advisers with their
obligations under the Underwriting Agreement do not and will not,
whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or Repayment Event
(as defined in Section 1(a)(xii) of the Underwriting Agreement) under
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of any 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, after due inquiry, to which any of the Advisers is a
party or by which it or any of them may be bound, or to which any of
the property or
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assets of any 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 any of the
Advisers, the rules and requirements of the NYSE, the rules and
interpretations of the NASD or other governmental body, stock exchange
or securities association having jurisdiction over any of the
Advisers, or any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to us, after to inquiry, of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Advisers 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
Deloitte & Touche LLP, 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 (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 and for
statistical information derived from such financial statements, supporting
schedules or other financial data, 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 and for statistical
information derived from such financial statements, supporting schedules or
other financial data, as to which we do not express any belief), at the time the
Prospectus was issued, or at the Closing Time, 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.
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