The Gabelli Dividend & Income Trust
(a Delaware statutory trust)
[ ] Preferred Shares ("Preferred Shares")
[ ] Shares [ ]% Preferred Shares, Series A
Liquidation Preference $[25] per share
[ ] Auction Market Preferred Shares ("AMPS")
[ ] Shares [ ]% AMPS, Series B
Liquidation Preference $[25,000] per share
FORM OF PURCHASE AGREEMENT
[ ], 2004
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Gabelli & Company, Inc.
[Other Co-Managers]
c/x Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
The Gabelli Dividend & Income Trust, a Delaware statutory trust (the
"Fund"), proposes, upon the terms and conditions set forth herein, to issue
and sell an aggregate of [ ] shares of its Auction Market Preferred Shares,
Series B (the "AMPS"), and [ ] shares of its Preferred Shares, Series A, and,
with respect to the grant by the Fund to the Underwriters, acting severally
and not jointly, of the option described in Section 2(b) hereof to purchase
all or any part of [ ] additional Preferred Shares, Series A to cover
overallotments, if any. The aforesaid [ ] Preferred Shares, Series A (the
"Initial Preferred Shares") to be purchased by the Underwriters and all or any
part of the [ ] Preferred Shares, Series A subject to the option described in
Section 2(b) hereof (the "Option Preferred Shares," and together with the
Initial Preferred Shares, the "Preferred Shares"). The AMPS and the Preferred
Shares are hereinafter called, collectively, the "Shares." The Shares will be
authorized by, and subject to the terms and conditions of, the Agreement and
Declaration of Trust, as amended through [ ], 2004 (the "Declaration of
Trust") and each Statement of Preferences to be adopted in connection with the
issuance of the Shares (collectively, the "Statement of Preferences," and
together with the Declaration of Trust, the "Charter"), each in the form filed
as an exhibit to the Registration Statement referred to in the second
following paragraph to this Agreement, as the same may be amended from time to
time. The Fund and the Fund's investment adviser, Gabelli Funds, LLC, a New
York limited liability company (the "Adviser"), each confirms its agreement
with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
(together, "Xxxxxxx Xxxxx") and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Xxxxxxx Xxxxx, Gabelli & Company, Inc. and [Co-Managers] are
acting as representatives (in such capacity, the "Representatives"), with
respect to the issue and sale by the Fund and the purchase by the
Underwriters, acting severally and not jointly, of the respective number of
Shares set forth in said Schedule A.
The Fund understands that the Underwriters propose to make a public
offering of the Shares as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
The Fund has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form N-2 (No. 333-113708 and No.
811-21423) covering the registration of the Shares under the Securities Act of
1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses, and a notification on Form N-8A of registration
(the "1940 Act Notification") of the Fund as an investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"), and the rules and
regulations of the Commission under the 1933 Act and the 1940 Act (the "Rules
and Regulations"). Promptly after execution and delivery of this Agreement,
the Fund will either (i) prepare and file a prospectus in accordance with the
provisions of Rule 430A ("Rule 430A") of the Rules and Regulations and
paragraph (c) or (h) of Rule 497 ("Rule 497") of the Rules and Regulations or
(ii) if the Fund has elected to rely upon Rule 434 ("Rule 434") of the Rules
and Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
with the provisions of Rule 434 and Rule 497. The information included in any
such prospectus, that was omitted from such registration statement at the time
it became effective but that is deemed to be part of such registration
statement at the time it became effective, if applicable, (a) pursuant to
paragraph (b) of Rule 430A is referred to as "Rule 430A Information" or (b)
pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such
effectiveness and prior to the execution and delivery of this Agreement,
including in each case any statement of additional information incorporated
therein by reference, is herein called a "preliminary prospectus." Such
registration statement, including the exhibits thereto and schedules thereto
at the time it became effective and including the Rule 430A Information or the
Rule 434 Information, as applicable, is herein called the "Registration
Statement." Any registration statement filed pursuant to Rule 462(b) of the
Rules and Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. The final prospectus in the
form first furnished to the Underwriters for use in connection with the
offering of the Shares, including the Statement of Additional Information
incorporated therein by reference, is herein called the "Prospectus." If Rule
434 is relied on, the term "Prospectus" shall refer to the preliminary
prospectus dated [ ], 2004 together with the Term Sheet and all references in
this Agreement to the date of the Prospectus shall mean the date of the Term
Sheet. For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any Term Sheet or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated"
in the Registration Statement, any preliminary prospectus or the Prospectus
(or other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934 (the
"1934 Act") which is incorporated by reference in the Registration Statement,
such preliminary prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Fund and the Adviser. The
Fund and the Adviser jointly and severally represent and warrant to each
Underwriter as of the date hereof and as of the Closing Time referred to in
Section 2(d) hereof, and as of each Date of Delivery (if any) referred to in
Section 2(b) hereof, and agree with each Underwriter, as follows:
(i) Compliance with Registration Requirements. Each preliminary
prospectus included as part of the registration statement as
originally filed or as part of any amendment or supplement thereto,
or filed pursuant to Rule 497 of the 1933 Act Rules and Regulations,
complied when so filed in all material respects with the provisions
of the 1933 Act, the 1940 Act and the Rules and Regulations. The
Commission has not issued any order preventing or suspending the use
of any preliminary prospectus.
The Registration Statement in the form in which it became or
becomes effective and also in such form as it may be when any post
effective amendment thereto shall become effective and the Prospectus
and any amendment or supplement thereto when filed with the
Commission under Rule 497 of the 1933 Act Rules and Regulations and
the 1940 Act notification when originally filed with the Commission
and any amendment or supplement thereto when filed with the
Commission, complied or will comply in all material respects with the
provisions of the 1933 Act, the 1940 Act and the Rules and
Regulations. No stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has
been issued under the 1933 Act. No order of suspension or revocation
or registration pursuant to Section 8(e) of the 1940 Act, and no
proceedings for any such purpose have been instituted or are pending
or, to the knowledge of the Fund or the Adviser, are contemplated by
the Commission, and any request on the part of the Commission for
additional information has been complied with and did not or will not
at any such times contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, except that
this representation and warranty does not apply to statements in or
omissions from the Registration Statement or the Prospectus (or any
amendment or supplement thereto) made in reliance upon and in
conformity with information relating to any Underwriter furnished to
the Fund in writing by or on behalf of any Underwriter through you
expressly for use therein.
The Fund has filed in a timely manner each document or report
required to be filed by it pursuant to the 1934 Act and the rules and
regulations of Commission promulgated thereunder (the "1934 Act Rules
and Regulations"); each such document or report at the time it was
filed conformed to the requirements of the 1934 Act and the 1934 Act
Rules and Regulations; and none of such documents or reports
contained an untrue statement of any material fact or omitted to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497
under the Rules and Regulations, has taken all required action under
the 1933 Act, the 1940 Act and the Rules and Regulations to make the
public offering and consummate the sale of the Shares as contemplated
by this Agreement.
(ii) Independent Accountants. The accountants,
PricewaterhouseCoopers LLP, who have audited and certified or shall
audit and certify the financial statements included or incorporated
by reference in the Registration Statement and the Prospectus (or any
amendment or supplement to either of them) are independent public
accountants as required by the 1933 Act, the 1940 Act and the Rules
and Regulations.
(iii) Financial Statements. The financial statements, together
with related schedules and notes, included or incorporated by
reference in the Registration Statement and the Prospectus (and any
amendment or supplement to either of them), present fairly the
financial position, results of operations and changes in financial
position of the Fund on the basis stated or incorporated by reference
in the Registration Statement and the Prospectus at the respective
dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein;
and the other financial and statistical information and data included
in the Registration Statement and the Prospectus (and any amendment
or supplement to either of them) are accurately presented and
prepared on a basis consistent with such financial statements and the
books and records of the Fund.
(iv) Expense Summary. The information set forth in the
Prospectus in the Fee Table has been prepared in accordance with the
requirements of Form N-2 and to the extent estimated or projected,
such estimates or projections are reasonably believed to be
attainable and reasonably based.
(v) No Material Adverse Change. Except as disclosed in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them), subsequent to the respective dates as
of which such information is given in the Registration Statement and
the Prospectus (and any amendment or supplement to either of them),
the Fund has not incurred any liability or obligation, direct or
contingent, or entered into any transaction, not in the ordinary
course of business, that is material to the Fund, and there has not
been any change in the capital stock, or any dividend or distribution
of any kind declared, paid or made by the Fund on any class of its
capital shares, or material increase in the short term debt or long
term debt, of the Fund, or any material adverse change, or any
development involving or which may reasonably be expected to involve,
a prospective material adverse change, in the condition (financial or
other), business, prospects, properties, net assets or results of
operations of the Fund, whether or not arising in the ordinary course
of business ("Material Adverse Effect").
(vi) Good Standing of the Fund. The Fund is a statutory trust
duly organized and validly existing in good standing under the laws
of the State of Delaware, with full trust power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus (and any
amendment or supplement to either of them) and to enter into and
perform its obligations under this Agreement, and is duly registered
and qualified as a foreign statutory trust to conduct its business
and is in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to
register or qualify does not have a Material Adverse Effect on the
condition (financial or other), business, prospects, properties, net
assets or results of operations of the Fund.
(vii) No Subsidiaries. The Fund has no subsidiaries.
(viii) Investment Company Status. The Fund is duly registered
under the 1940 Act as a closed-end non-diversified management
investment company and the 1940 Act notification has been duly filed
with the Commission and, at the time of filing thereof and any
amendment or supplement thereto, conformed in all material respects
with all applicable provisions of the 1940 Act and the Rules and
Regulations, and no order of suspension or revocation of such
registration has been issued or proceedings therefore initiated or
threatened by the Commission. The Fund is, and at all times through
the completion of the transactions contemplated hereby, will be, in
compliance in all material respects with the terms and conditions of
the 1933 Act and the 1940 Act.
(ix) Officers and Trustees. To the best knowledge of each of
the Fund and the Adviser, no person is serving as an officer, trustee
or investment adviser of the Fund except in accordance with the 1940
Act and the 1940 Act Rules and Regulations and the Investment
Advisers Act of 1940, as amended (the "Advisers Act"), and the rules
and regulations of the Commission promulgated under the Investment
Advisers Act (the "Advisers Act Rules and Regulations"). Except as
disclosed in the Registration Statement and the Prospectus (or any
amendment or supplement to either of them), no trustee of the Fund is
an "interested person" (as defined in the 1940 Act) of the Fund or an
"affiliated person" (as defined in the 1940 Act) of any Underwriter.
No person is serving or acting as an officer, trustee or investment
adviser of the Fund except in accordance with the provisions of the
1940 Act and the 1940 Act Rules and Regulations and the Advisers Act
and the Advisers Act Rules and Regulations.
(x) Capitalization and Authorization of Shares. The authorized,
issued and outstanding shares of beneficial interest of the Fund are
as set forth in the Prospectus. All the issued and outstanding shares
of beneficial interest of the Fund have been duly authorized and
validly issued, are fully paid and nonassessable and are free of any
preemptive or similar right, the Shares have been duly authorized
and, when issued and delivered to the Underwriters against payment
therefor in accordance with the terms hereof, will be validly issued,
fully paid and nonassessable and free of any preemptive or similar
rights and will conform to the description thereof in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them). No holder of the Shares will be
subject to personal liability by reason of being such a holder. The
Shares of the Fund conform to the description thereof in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them).
(xi) Compliance With Governing Documents and Law. The Fund is
not in violation of its Charter or by-laws, or other organizational
documents, or of any law, ordinance, administrative or governmental
rule or regulation applicable to the Fund or of any decree of the
Commission, the NASD, any state securities commission, any national
securities exchange, any arbitrator, any court or governmental
agency, body or official having jurisdiction over the Fund, or in
default in any material respect in the performance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, bond, debenture, note or any
other evidence of indebtedness or in any contract required to be
included as an exhibit to the Registration Statement (each, a
"Material Fund Agreement"); and the execution, delivery and
performance of this Agreement, the Investment Advisory Agreement, the
Administration Agreement, the Custodian Agreement, the Transfer
Agency and Service Agreement and the Auction Agency Agreement
referred to in the Registration Statement (as used herein, the
"Investment Advisory Agreement," the "Administration Agreement," the
"Custodian Agreement," the "Transfer Agency Agreement" and the
"Auction Agency Agreement" respectively) and the consummation of the
transactions contemplated herein and in the Registration Statement
(including the issuance and sale of the Shares and the use of the
proceeds from the sale of the Shares as described in the Prospectus
under the caption "Use of Proceeds") and compliance by the Fund 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 Fund
pursuant to, such agreements (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 Charter or by-laws of the Fund,
each as amended from time to time, or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Fund or any of its assets, properties or
operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment
of all or a portion of such indebtedness by the Fund.
(xii) Absence of Proceedings. There are no inquiries,
investigations or legal or governmental proceedings pending or
threatened, against the Fund, or to which the Fund or any of its
properties is subject, that are required to be described in the
Registration Statement or the Prospectus (and any amendment or
supplement to either of them) but are not described as required, and
there are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Registration
Statement or the Prospectus (and any amendment or supplement to
either of them) or to be filed as an exhibit to the Registration
Statement that are not described or filed as required by the 1933
Act, the 1940 Act or the Rules and Regulations.
(xiii) Possession of Intellectual Property. The conduct by the
Fund of its business (as described in the Prospectus) does not
require it to be the owner, possessor or licensee of any patents,
patent licenses, trademarks, service marks or trade names which it
does not own, possess or license ("Intellectual Property"), and the
Fund has not received any notice or is not otherwise aware of any
infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances
which would render any Intellectual Property invalid or inadequate to
protect the interest of the Fund therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
(xiv) Absence of Further Requirements. Neither the issuance and
sale of the Shares, the execution, delivery or performance of this
Agreement or any of the Investment Advisory Agreement, the Custodian
Agreement, the Transfer Agency Agreement and the Auction Agency
Agreement (the "Fund Agreements") by the Fund, nor the consummation
by the Fund of the transactions contemplated hereby or thereby (A)
requires any consent, approval, authorization or other order of or
registration or filing with, the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court, regulatory body, administrative agency or
other governmental body, agency or official (except such as may have
been obtained prior to the date hereof and such as may be required
for compliance with the state securities or blue sky laws of various
jurisdictions which have been or will be effected in accordance with
this Agreement) or conflicts or will conflict with or constitutes or
will constitute a breach of, or a default under, the Charter, the
Statement of Preferences, the by-laws or other organizational
documents of the Fund or (B) conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, any
agreement, indenture, lease or other instrument to which the Fund is
a party or by which it or any of its properties may be bound, or
violates or will violate any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Fund or any
of its properties, or will result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Fund pursuant to the terms of any agreement or instrument to which it
is a party or by which it may be bound or to which any of its
property or assets is subject. The Fund is not subject to any order
of any court or of any arbitrator, governmental authority or
administrative agency.
(xv) Advertisements. All advertising, sales literature or other
promotional material (including "prospectus wrappers," "broker kits,"
"road show slides" and "road show scripts"), whether in printed or
electronic form, authorized in writing by or prepared by the Fund or
the Adviser for use in connection with the offering and sale of the
Shares (collectively, "sales material") complied and comply in all
material respects with the applicable requirements of the 1933 Act,
the 1940 Act, the Rules and Regulations and the rules and
interpretations of the NASD and no such sales material contained or
contains an untrue statement of a material fact or omitted or omits
to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(xvi) Subchapter M. At all times since its inception, as
required by Subchapter M of the Code, the Fund has complied with the
requirements of Subchapter M and intends to qualify as a regulated
investment company under the Code.
(xvii) Distribution of Offering Materials. The Fund has not
distributed and, prior to the later to occur of (A) the Closing Time
and (B) completion of the distribution of the Shares, will not
distribute any offering material in connection with the offering and
sale of the Shares other than the Registration Statement, any
preliminary prospectus, the Prospectus or other materials, if any,
permitted by the 1933 Act or the 1940 Act or the Rules and
Regulations.
(xviii) Accounting Controls. The Fund maintains and will
maintain a system of internal accounting controls sufficient to
provide reasonable assurances that (A) transactions are executed in
accordance with management's general or specific authorization and
with the investment policies and restrictions of the Fund and with
the applicable requirements of the 1940 Act, the 1940 Act Rules and
Regulations and the Internal Revenue Code of 1986, as amended (the
"Code"); (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles, to calculate net asset value, and to
maintain accountability for assets and to maintain compliance with
the books and records requirements under the 1940 Act and the 1940
Act Rules and Regulations; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and
(D) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(xix) Absence of Undisclosed Payments. To the Fund's knowledge,
except as disclosed in the Prospectus, neither the Fund nor any
employee or agent of the Fund has made any payment of funds of the
Fund or received or retained any funds, which payment, receipt or
retention of funds is of a character required to be disclosed in the
Prospectus.
(xx) Material Agreements. The execution and delivery of, and
the performance by the Fund of its obligations under, this Agreement
and the Fund Agreements have been duly and validly authorized by the
Fund, and this Agreement and the Fund Agreements have been duly
executed and delivered by the Fund and constitute the valid and
legally binding agreements of the Fund, enforceable against the Fund
in accordance with their terms, except as rights to indemnity and
contribution hereunder and thereunder may be limited by federal or
state securities laws. Each of the Fund Agreements and the Fund's and
the Adviser's obligations under this Agreement and each of the Fund
Agreements comply in all material respects with all applicable
provisions of the 1940 Act, the 1940 Act Rules and Regulations, the
Advisers Act the Advisers Act Rules and Regulations.
(xxi) Registration Rights. No holder of any security of the
Fund has any right to require registration of any shares of capital
stock or any other security of the Fund because of the filing of the
Registration Statement or consummation of the transactions
contemplated by this Agreement.
(xxii) Ratings. The AMPS have been, or prior to the Closing
Date will be, assigned a rating of "Aaa" by Xxxxx'x Investors
Service, Inc. ("Moody's") and "AAA" by Fitch Ratings ("Fitch"). The
Preferred Shares have been, or prior to the Closing Date will be,
assigned a rating of "[ ]" by [ ].
(xxiii) Taxes. The Fund has filed all tax returns required to
be filed, which returns are complete and correct, and the Fund is not
in material default in the payment of any taxes which were payable
pursuant to said returns or any assessments with respect thereto.
(xxiv) Market Stabilization Activities. Except as stated in
this Agreement and in the Prospectus (and any amendment or supplement
thereto), the Fund has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any securities issued by the Fund to facilitate the sale or
resale of the Common Shares and the Shares, and the Fund is not aware
of any such action taken or to be taken by any affiliates of the
Fund.
(xxv) NYSE Listing. The Preferred Shares have been duly
authorized for listing, upon notice of issuance, on the New York
Stock Exchange ("NYSE") and the Fund's registration statement on Form
8-A under the 1934 Act has become effective.
(b) Representations and Warranties by the Adviser. The Adviser
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, as follows:
(i) Good Standing of the Adviser. The Adviser is a limited
liability company duly organized and validly existing in good
standing under the laws of the State of New York, with full limited
liability company power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them), and is duly registered and qualified
to conduct its business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where
the failure so to register or to qualify does not have a material
adverse effect on the condition (financial or other), business,
prospects, properties, net assets or results of operations of the
Adviser and its subsidiaries, taken as a whole, or on the ability of
the Adviser to perform its obligations under this Agreement and the
Investment Advisory Agreement.
(ii) Adviser Status. The Adviser is duly registered with the
Commission as an investment adviser under the Advisers Act and is not
prohibited by the Advisers Act, the Advisers Act Rules and
Regulations, the 1940 Act or the 1940 Act Rules and Regulations from
acting under the Investment Advisory Agreement for the Fund as
contemplated by the Prospectus (or any amendment or supplement
thereto). There does not exist any proceeding or any facts or
circumstances the existence of which could lead to any proceeding
which might adversely affect the registration of the Adviser with the
Commission.
(iii) Description of the Adviser. The description of the
Adviser in the Registration Statement and the Prospectus (and any
amendment or supplement thereto) complied and comply in all material
respects with the provisions the 1933 Act, the 1940 Act, the Advisers
Act, the Rules and Regulations and the Advisers Act Rules and
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(iv) Capitalization. The Adviser has the financial resources
available to it necessary for the performance of its services and
obligations as contemplated in the Prospectus (or any amendment or
supplement thereto) and under this Agreement and the Investment
Advisory Agreement.
(v) Authorization. The execution and delivery of, and the
performance by the Adviser of its obligations under, this Agreement
and the Investment Advisory Agreement have been duly and validly
authorized by the Adviser, and this Agreement and the Investment
Advisory Agreement have been duly executed and delivered by the
Adviser and each constitutes the valid and legally binding agreement
of the Adviser, enforceable against the Adviser in accordance with
its terms except as rights to indemnity and contribution hereunder
may be limited by federal or state securities laws.
(vi) Absence of Proceedings. There are no legal or governmental
proceedings pending or, to the knowledge of the Adviser, threatened
against the Adviser, or to which the Adviser or any of its properties
is subject, that are required to be described in the Registration
Statement or the Prospectus (or any amendment or supplement to either
of them) but are not described as required or that may reasonably be
expected to involve a prospective material adverse change, in the
condition (financial or other), business, prospects, properties, net
assets or results of operations of the Adviser and its subsidiaries,
taken as a whole, or on the ability of the Adviser to perform its
obligations under this Agreement and the Investment Advisory
Agreement.
(vii) Absence of Violation or Default. The Adviser is not in
violation of its articles of organization, by-laws or other
organizational documents or in default under any agreement, indenture
or instrument, where such violation or default would reasonably be
expected to have a material adverse effect on the ability of the
Adviser to function as an investment adviser or perform its
obligations under the Investment Advisory Agreement.
(viii) Absence of Required Approvals and Conflicts. Neither the
execution, delivery or performance of this Agreement or the
Investment Advisory Agreement by the Adviser, nor the consummation by
the Adviser of the transactions contemplated hereby or thereby (A)
requires the Adviser to obtain any consent, approval, authorization
or other order of or registration or filing with, the Commission, the
NASD, any state securities commission, any national securities
exchange, any arbitrator, any court, regulatory body, administrative
agency or other governmental body, agency or official or conflicts or
will conflict with or constitutes or will constitute a breach of or a
default under the operating agreement or by-laws, or other
organizational documents of the Adviser or (B) conflicts or will
conflict with or constitutes or will constitute a breach of or a
default under, any agreement, indenture, lease or other instrument to
which the Adviser is a party or by which it or any of its properties
may be bound, or violates or will violate any statute, law,
regulation or filing or judgment, injunction, order or decree
applicable to the Adviser or any of its properties or will result in
the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Adviser pursuant to the terms of any
agreement or instrument to which it is a party or by which it may be
bound or to which any of the property or assets of the Adviser is
subject. The Adviser is not subject to any order of any court or of
any arbitrator, governmental authority or administrative agency
except for (1) an Order of the Securities and Exchange Commission,
dated August 17, 1988 and (2) an Order of the Federal Communications
Commission, dated August 21, 1992.
(ix) Absence of Undisclosed Liabilities. Except as disclosed in
the Registration Statement and the Prospectus (or any amendment or
supplement to either of them), subsequent to the respective dates as
of which such information is given in the Registration Statement and
the Prospectus (or any amendment or supplement to either of them),
the Adviser has not incurred any liability or obligation, direct or
contingent, or entered into any transaction, not in the ordinary
course of business, that is material to the Adviser and its
subsidiaries, taken as a whole, and that is required to be disclosed
in the Registration Statement or in the Prospectus and there has not
been any material adverse change, or any development involving or
which may reasonably be expected to involve, a prospective material
adverse change, in the condition (financial or other), business,
prospects, properties, net assets or results of operations of the
Adviser and its subsidiaries, taken as a whole, whether or not
arising in the ordinary course of business, or which, in each case,
may reasonably be expected to have a material adverse effect on the
ability of the Adviser to perform its obligations under this
Agreement and the Investment Advisory Agreement.
(x) Permits and Licenses. The Adviser has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits") as are necessary to own its properties and to
conduct its business in the manner described in the Prospectus (and
any amendment or supplement thereto); the Adviser has fulfilled and
performed all its material obligations with respect to such permits
and no event has occurred which allows, or after notice or lapse of
time would allow, revocation or termination thereof or results in any
other material impairment of the rights of the Adviser under any such
permit; and, except as described in the Prospectus (and any amendment
or supplement thereto), none of such permits contains any restriction
that is materially burdensome to the Adviser.
(xi) Market Stabilization Activities. Except as stated in this
Agreement and in the Prospectus (and in any amendment or supplement
thereto), the Adviser has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be
expected to cause or result in, stabilization or manipulation of the
price of any securities issued by the Fund to facilitate the sale or
resale of the Common Shares and the Shares, and the Adviser is not
aware of any such action taken or to be taken by any affiliates of
the Adviser; it being understood that the Underwriters include
certain affiliates of the Adviser and that stabilization or other
activity by you shall not be deemed to be violative of this
representation.
(xii) No Material Adverse Change. Since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, there has not
occurred any event which should reasonably be expected to have a
material adverse effect on the ability of the Adviser to perform its
obligations under this Agreement and the Investment Advisory
Agreement to which it is a party.
(xiii) Key Personnel. Xxxxx X. Xxxxxxx is the validly appointed
Chief Investment Officer of the Adviser and the lead portfolio
manager of the Fund; Xx. Xxxxxxx has not given notice nor made known
an intention to give notice of termination of his employment and the
Adviser knows of no reason why Xx. Xxxxxxx should be unable to serve
as portfolio manager to the Fund.
(xiv) Control of Electronic Information. In the event that the
Fund or the Adviser makes available any promotional materials
intended for use only by qualified broker dealers and registered
representatives thereof by means of a proprietary Internet web site
administered by such party or similar electronic means, the Fund or
the Adviser will install and maintain pre-qualification and password
protection or similar procedures which are reasonably designed to
restrict access to such promotional materials by persons other than
qualified broker dealers and representatives thereof.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Shares. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Fund
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Fund, at
the price per share set forth in Schedule B, the number of Shares set forth in
Schedule A opposite the name of such Underwriter, plus any additional number
of Shares which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 10 hereof.
(b) Option Preferred Shares. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Fund hereby grants an option to the
Underwriters, severally and not jointly, to purchase up to an additional [ ]
Preferred Shares in the aggregate at the price per share set forth in Schedule
B, less an amount per share equal to any dividends or distributions declared
by the Fund and payable on the Initial Preferred Shares but not payable on the
Option Preferred Shares. The option hereby granted will expire 45 days after
the date hereof and may be exercised in whole or in part from time to time
only for the purpose of covering overallotments which may be made in
connection with the offering and distribution of the Initial Preferred Shares
upon notice by the Representatives to the Fund setting forth the number of
Option Preferred Shares as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery for such
Option Preferred Shares. Any such time and date of delivery (a "Date of
Delivery") shall be determined by the Representatives, but shall not be
earlier than the third day after the date on which the option is being
exercised nor later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter defined. If
the option is exercised as to all or any portion of the Option Preferred
Shares, each of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total number of Option Preferred Shares then
being purchased which the number of Initial Preferred Shares set forth in
Schedule A opposite the name of such Underwriter bears to the total number of
Initial Preferred Shares, subject in each case to such adjustments as Xxxxxxx
Xxxxx in its discretion shall make to eliminate any sales or purchases of a
fractional number of Option Preferred Shares.
(c) Commission. The Fund agrees to pay to the Underwriters a
commission set forth in Schedule B, as compensation to the Underwriters for
their commitments under this Agreement.
(d) Payment. Payment of the purchase price for, and delivery of
certificates for, the Shares shall be made at the offices of Clifford Chance
US LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place as
shall be agreed upon by the Representatives and the Fund, at 10:00 A.M.
(Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by
the Representatives and the Fund (such time and date of payment and delivery
being herein called "Closing Time").
In addition, in the event that any or all of the Option Preferred
Shares are purchased by the Underwriters, payment of the purchase price for,
and delivery of certificates for, such Option Preferred Shares shall be made
at the above-mentioned offices, or at such other place as shall be agreed upon
by the Representatives and the Fund, on each Date of Delivery as specified in
the notice from the Representatives to the Fund.
Payment shall be made to the Fund by wire transfer of immediately
available funds to a bank account designated by the Fund, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Shares to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for
Shares that it has agreed to purchase. Xxxxxxx Xxxxx, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Shares to be purchased by any
Underwriter whose funds have not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
(e) Denominations; Registration. A certificate for the Preferred
Shares, representing one series of the Preferred Shares, and a certificate for
the AMPS, representing one series of the AMPS, shall each be registered in the
name of Cede & Co., as nominee for the Depository Trust Company. The
certificates will be made available for examination and packaging by the
Representatives in the City of New York not later than 10:00 A.M. (Eastern
time) on the business day prior to the Closing Time or the relevant Date of
Delivery, as the case may be.
SECTION 3. Covenants.
(a) The Fund and the Adviser, jointly and severally, covenant with
each Underwriter as follows:
(i) Compliance with Securities Regulations and Commission
Requests. The Fund, subject to Section 3(a)(ii), will comply with the
requirements of Rule 430A 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 Shares for offering or
sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Fund will promptly effect
the filings necessary pursuant to Rule 497 and will take such steps
as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 497 was received for
filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Fund will make 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 1940 Act, and, if any such stop order or order of suspension or
revocation of registration is issued, to obtain the lifting thereof
at the earliest possible moment.
(ii) Filing of Amendments. The Fund will give the
Representatives notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing under
Rule 462(b)), 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 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.
(iii) Delivery of Registration Statements. The Fund has
furnished or will deliver to the Representatives, without charge, a
signed copy of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or
incorporated by reference therein) and a signed copy of all consents
and certificates of experts, and will also deliver to the
Representatives, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without
exhibits) for each of the Underwriters. The copies of the
Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to
the extent permitted by Regulation S-T.
(iv) Delivery of Prospectuses. The Fund has delivered to each
Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter reasonably requested, and the Fund
hereby consents to the use of such copies for purposes permitted by
the 1933 Act. The Fund will furnish to each Underwriter, without
charge, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies
of the Prospectus (as amended or supplemented) as such Underwriter
may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical
to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(v) Continued Compliance with Securities Laws. If at any time
when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Shares, any event shall occur or
condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Fund, to amend the
Registration Statement or amend or supplement the Prospectus in order
that the Prospectus will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or
if it shall be necessary, in the opinion of such counsel, at any such
time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act
or the Rules and Regulations, the Fund will promptly prepare and file
with the Commission, subject to Section 3(a)(ii), such amendment or
supplement as may be necessary to correct such statement or omission
or to make the Registration Statement or the Prospectus comply with
such requirements, and the Fund will furnish to the Underwriters such
number of copies of such amendment or supplement as the Underwriters
may reasonably request.
(vi) Blue Sky Qualifications. The Fund will use its best
efforts, in cooperation with the Underwriters, to qualify the Shares
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 Fund shall not be
obligated to file any general consent to service of process or to
qualify as a foreign trust or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the Shares
have been so qualified, the Fund will file such statements and
reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for a period of not less than
one year from the effective date of the Registration Statement and
any Rule 462(b) Registration Statement.
(vii) Rule 158. The Fund will timely file such reports pursuant
to the 1934 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 1933 Act.
(viii) Use of Proceeds. The Fund will use the net proceeds
received by it from the sale of the Shares in the manner specified in
the Prospectus under "Use of Proceeds".
(ix) Listing. The Fund will use commercially reasonable efforts
to effect the listing of the Preferred Shares on the NYSE, subject to
notice of issuance, on or before 30 days from the date hereof.
(x) Restriction on Sale of Shares. During a period of 180 days
from the date of the Prospectus, the Fund will not, without the prior
written consent of Xxxxxxx Xxxxx, (A) directly or indirectly, offer,
pledge, sell, contract to sell, sell any option, right or warrant to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of
Shares or any securities convertible into or exercisable or
exchangeable for Shares or file any registration statement under the
1933 Act with respect to any of the foregoing or (B) enter into any
swap or any other agreement or any transaction that transfers, in
whole or in part, directly or indirectly, the economic consequence of
ownership of the Shares, whether any such swap or transaction
described in clause (A) or (B) above is to be settled by delivery of
Shares or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (1) the Shares to be sold hereunder or
(2) Shares issued pursuant to any dividend reinvestment plan.
(xi) Reporting Requirements. The Fund, during the period when
the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1940 Act and the 1934 Act within the time
periods required by the 1940 Act and the Rules and Regulations and
the 1934 Act and the rules and regulations of the Commission
thereunder, respectively.
(xii) Subchapter M. The Fund will comply with the requirements
of Subchapter M of the Code to qualify as a regulated investment
company under the Code.
(xiii) No Manipulation of Market for Shares. The Fund will not
(a) take, directly or indirectly, any action designed to cause or to
result in, or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Fund to facilitate the sale or resale of the Shares, and (b) until
the Closing Date (i) sell, bid for or purchase the Shares or pay any
person any compensation for soliciting purchases of the Shares or
(ii) pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the Fund.
(xiv) Rule 462(b) Registration Statement. If the Fund elects to
rely upon Rule 462(b), the Fund shall file a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) by 10:00
P.M., Washington, D.C. time, on the date of this Agreement, and the
Fund shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the 1933 Act.
(xv) Accountant's Confirmation. The Fund will furnish to the
Underwriters, on the date on which delivery is made to the Rating
Agencies, the Accountant's Confirmation (as defined in the Statement
of Preferences) corresponding to the Basic Maintenance Report (as
defined in the Statement of Preferences) for the first Valuation Date
(as defined in the Statement of Preferences) following the Closing
Time.
(b) Except as provided in this Agreement, the Fund will not sell,
contract to sell or otherwise dispose of any of its preferred shares of
beneficial interest of the same series as the Shares or any securities
convertible into or exercisable or exchangeable for its preferred shares of
beneficial interest of the same series as the Shares, or grant any options or
warrants to purchase its preferred shares of beneficial interest of the same
series as the Shares, for a period of 180 days after the date of the
Prospectus, without the prior written consent of Xxxxxxx Xxxxx.
(c) On the date of the purchase and sale contemplated by this
Agreement (the "Closing Date"), and assuming the receipt of the proceeds of
the issuance of the Shares on such date, the Fund will use all or a portion of
such proceeds to repay any liability that the Fund has for borrowed money
outstanding on the Closing Date (except for short-term liabilities in
connection with settling sales or purchases of portfolio securities),
including interest thereon, including for this purpose any liability of the
Fund outstanding on such date under any reverse repurchase agreement.
SECTION 4. Payment of Expenses.
(a) Expenses. The Fund will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of
this Agreement, any Agreement among Underwriters and such other documents as
may be required in connection with the offering, purchase, sale, issuance or
delivery of the Shares, (iii) the preparation, issuance and delivery of the
certificates for the Shares to the Underwriters, including any stock or other
transfer taxes and any stamp or other duties payable upon the sale, issuance
or delivery of the Shares to the Underwriters, (iv) the fees and disbursements
of the Fund's counsel, accountants and other advisers, (v) the qualification
of the Shares under securities laws in accordance with the provisions of
Section 3(a)(vi) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, Prospectus and any amendments or supplements thereto,
(vii) the preparation, printing and delivery to the Underwriters of copies of
the Blue Sky Survey and any supplement thereto, (viii) the fees and expenses
of any transfer agent or registrar for the Shares, (ix) the fees and expenses
incurred in connection with the rating of the Shares, (x) the fees and
expenses incurred in connection with the listing of the Preferred Shares on
the NYSE and (xi) the printing of any sales material.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section 9(a)
hereof, the Fund and the Adviser, jointly and severally, agree that they shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations.
The obligations of the several Underwriters hereunder are subject to
the accuracy of the representations and warranties of the Fund and the Adviser
contained in Section 1 hereof or in certificates of any officer of the Fund or
the Adviser delivered pursuant to the provisions hereof, to the performance by
the Fund and the Adviser of their respective covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act, no
notice or order pursuant to Section 8(e) of the 1940 Act shall have been
issued, and no proceedings with respect to either shall have been initiated
or, to the knowledge of counsel to the Underwriters and counsel to the Fund,
threatened by the Commission, and any request on the part of the Commission
for additional information shall have been complied with or waived to the
reasonable satisfaction of counsel to the Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 497 (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with
the requirements of Rule 430A) or, if the Fund has elected to rely on upon
Rule 434, a Term Sheet shall have been filed with the Commission in accordance
with Rule 497.
(b) Opinion of Counsel for the Fund and the Adviser. At Closing Time,
the Representatives shall have received the favorable opinions, dated as of
Closing Time, from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Fund, and Xxxxx XxXxx, Esq., counsel for the Adviser, 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) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Clifford Chance US LLP, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters
with respect to the matters set forth in clauses [(A) (i), (ii), (vi), (vii)
(solely as to preemptive or other similar rights arising by operation of law
or under the Charter or bylaws of the Fund), (viii) through (x), inclusive,
(xiv)] (solely as to the information in the Prospectus under "Description of
the Series A Preferred and Series B AMPS") and the last paragraph of Exhibit A
hereto. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of New
York and the federal law of the United States, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Fund and certificates of
public officials.
(d) Officers' Certificates. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Fund, whether or not arising in the ordinary course
of business, and the Representatives shall have received a certificate of a
duly authorized officer of the Fund and of the chief financial or chief
accounting officer of the Fund and of the President or a Vice President or
Managing Director of the Adviser, dated as of Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the representations
and warranties in Sections 1(a) and (b) hereof are true and correct with the
same force and effect as though expressly made at and as of Closing Time,
(iii) each of the Fund and the Adviser, respectively, has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, (iv) with respect to the Adviser only,
there has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of such
Advisor, whether or not arising in the ordinary course of business and (v)
with respect to the Fund only, no stop order suspending the effectiveness of
the Registration Statement, or order of suspension or revocation of
registration pursuant to Section 8(e) of the 1940 Act, has been issued and no
proceedings for any such purpose have been instituted or, to the best of their
knowledge, are pending or are contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from PricewaterhouseCoopers
LLP a letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from PricewaterhouseCoopers LLP a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (e) of this Section, except that the
specified date referred to shall be a date not more than three business days
prior to Closing Time.
(g) Approval of Listing. At Closing Time, the Preferred Shares shall
have been approved for listing on the NYSE, subject only to official notice of
issuance.
(h) Rating. The Fund shall have delivered and you shall have received
evidence satisfactory to you that the AMPS are rated "Aaa" by Xxxxx'x and
"AAA" by S&P as of the date of the purchase and sale contemplated by this
Agreement (the "Closing Date") and the Preferred Shares are rated Aaa by
Xxxxx'x as of the Closing Date, and there shall not have been given any notice
of any intended or potential downgrading, or of any review for a potential
downgrading, in the ratings accorded to the Shares or any other securities
issued by Xxxxx'x or by S&P.
(i) Asset Coverage. As of the Closing Date and assuming the receipt
of the net proceeds from the sale of the Shares, the Asset Coverage and the
Basic Maintenance Amount (each as defined in the Statement of Preferences)
each will be met.
(j) Conditions to Purchase of Option Preferred Shares. In the event
that the Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Preferred Shares, the
representations and warranties of the Fund contained herein and the statements
in any certificates furnished by the Fund hereunder shall be true and correct
as of each Date of Delivery and, at the relevant Date of Delivery, the
Representatives shall have received:
(i) Officers' Certificates. Certificates, dated such Date of
Delivery, of a duly authorized officer of the Fund and of the chief
financial or chief accounting officer of the Fund and of the
President or a Vice President or Managing Director of the Investment
Manager confirming that the information contained in the certificate
delivered by each of them at the Closing Time pursuant to Section
5(d) hereof remains true and correct as of such Date of Delivery.
(ii) Opinions of Counsel for the Fund and the Investment
Manager. The favorable opinion of Xxxxxxx, Arps, Slate, Xxxxxxx &
Xxxx, counsel for the Fund and of Xxxxx XxXxx, Esq., internal counsel
for the Investment Manager, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery, relating
to the Option Preferred Shares to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by
Section 5(b) hereof.
(iii) Opinion of Counsel for the Underwriters. The favorable
opinion of Clifford Chance US LLP, counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Preferred Shares
to be purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(c) hereof.
(iv) Bring-down Comfort Letter. A letter from
PricewaterhouseCoopers LLP, in form and substance satisfactory to the
Representatives and dated such Date of Delivery, substantially in the
same form and substance as the letter furnished to the
Representatives pursuant to Section 5(f) hereof, except that the
"specified date" in the letter furnished pursuant to this paragraph
shall be a date not more than five days prior to such Date of
Delivery.
(v) Rating. Evidence satisfactory to the Representatives and
dated such Date of Delivery that the Preferred Shares are rated Aaa
by Xxxxx'x as of such date, and there shall not have been given any
notice of any intended or potential downgrading, or of any review for
a potential downgrading, in the ratings accorded to the Shares or any
other securities issued by Xxxxx'x or by S&P, substantially in the
same form and substance as the evidence furnished pursuant to Section
5(h) hereof.
(vi) Asset Coverage. As of each Date of Delivery and assuming
the receipt of the net proceeds from the sale of the Option Preferred
Shares, the Asset Coverage and the Basic Maintenance Amount (each as
defined in the Statement of Preferences) each will be met.
(k) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them to
pass upon the issuance and sale of the Shares as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Fund and the Adviser in connection with the
organization and registration of the Fund under the 1940 Act and the issuance
and sale of the Shares as herein contemplated shall be satisfactory in form
and substance to the Representatives and counsel for the Underwriters.
(l) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement or, in the case of any condition to the purchase of Option
Preferred Shares, on a Date of Delivery which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Preferred Shares, may be terminated by the Representatives by notice to the
Fund at any time at or prior to Closing Time or as such Date of Delivery, as
the case may be, and such termination shall be without liability of any party
to any other party except as provided in Section 4 and except that Sections 1,
6, 7, 8 and 13 shall survive any such termination and remain in full force and
effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Fund and the Adviser,
jointly and severally, agree to indemnify and hold harmless each of you and
each other Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
from and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation), joint or several, arising out
of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Prospectus, any
sales material (or any amendment or supplement to any of the foregoing), or
arising out of or based upon any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has been
made therein or omitted therefrom in reliance upon and in conformity with the
information relating to such Underwriter furnished in writing to the Fund by
or on behalf of any Underwriter through you expressly for use in connection
therewith; provided, however, that the indemnification contained in this
paragraph (a) with respect to any preliminary prospectus shall not inure to
the benefit of any Underwriter (or to the benefit of any person controlling
such Underwriter) on account of any such loss, claim, damage, liability or
expense arising from the sale of the Shares by such Underwriter to any person
if a copy of the Prospectus shall not have been delivered or sent to such
person within the time required by the 1933 Act and the 1933 Act Rules and
Regulations, and the untrue statement or alleged untrue statement or omission
or alleged omission of a material fact contained in such preliminary
prospectus was corrected in the Prospectus, provided that the Fund has
delivered the Prospectus to the several Underwriters in requisite quantity on
a timely basis to permit such delivery or sending. The foregoing indemnity
agreement shall be in addition to any liability that the Fund or the Adviser
may otherwise have.
(b) Procedure. If any action, suit or proceeding, including any
investigation or proceeding by any governmental agency or body, shall be
commenced or threatened, against any Underwriter or any person controlling any
Underwriter in respect of which indemnity may be sought against the Fund or
the Adviser, such Underwriter or such controlling person shall promptly notify
the Fund or the Adviser, and the Fund or the Adviser shall assume the defense
thereof, including the employment of counsel and payment of all fees and
expenses and the cost of any investigation. Such Underwriter or any such
controlling person shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Underwriter
or such controlling person unless (i) the Fund or the Adviser has agreed in
writing to pay such fees and expenses, (ii) the Fund and the Adviser have
failed to assume the defense and employ counsel, or (iii) the named parties to
any such action, suit or proceeding (including any impleaded parties) include
both such Underwriter or such controlling person and the Fund or the Adviser
and such Underwriter or such controlling person shall have been advised by its
counsel that representation of such indemnified party and the Fund or the
Adviser by the same counsel would be inappropriate under applicable standards
of professional conduct (whether or not such representation by the same
counsel has been proposed) due to actual or potential differing interests
between them (in which case the Fund and the Adviser shall not have the right
to assume the defense of such action, suit or proceeding on behalf of such
Underwriter or such controlling person). It is understood, however, that the
Fund and the Adviser shall, in connection with any one such action, suit or
proceeding or separate but substantially similar or related actions, suits or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses
of only one separate firm of attorneys (in addition to any local counsel) at
any time for all such Underwriters and controlling persons not having actual
or potential differing interests with you or among themselves, which firm
shall be designated in writing by Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated, and that all such fees and expenses shall be reimbursed as they
are incurred. The Fund and the Adviser shall not be liable for any settlement
of any such action, suit or proceeding effected without its written consent,
but if settled with such written consent, or if there be a final judgment for
the plaintiff in any such action, suit or proceeding, the Fund and the Adviser
agree to indemnify and hold harmless any Underwriter, to the extent provided
in the preceding paragraph, and any such controlling person from and against
any loss, claim, damage, liability or expense by reason of such settlement or
judgment.
(c) Indemnification of Fund and Adviser by Underwriters. Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Fund and the Adviser, their trustees, their directors, any officers who
sign the Registration Statement, and any person who controls the Fund or the
Adviser within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, to the same extent as the foregoing indemnity from the Fund and the
Adviser to each Underwriter, but only with respect to information relating to
such Underwriter furnished in writing by or on behalf of such Underwriter
through you expressly for use in the Registration Statement, the Prospectus or
any preliminary prospectus, or any amendment or supplement thereto. If any
action, suit or proceeding shall be brought against the Fund or the Adviser,
any of their trustees, their directors, any such officer, or any such
controlling person based on the Registration Statement, the Prospectus or any
preliminary prospectus, or any amendment or supplement thereto, and in respect
of which indemnity may be sought against any Underwriter pursuant to this
paragraph (c), such Underwriter shall have the rights and duties given to the
Fund and the Adviser by paragraph (b) above (except that if the Fund or the
Adviser shall have assumed the defense thereof such Underwriter shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof, but the fees and expenses of such counsel shall be at
such Underwriter's expense), and the Fund and the Adviser, their trustees,
their directors, any such officer, and any such controlling person shall have
the rights and duties given to the Underwriters by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability that the
Underwriters may otherwise have.
(d) Settlement and Consent.
(i) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending action, suit or proceeding with respect to which such
indemnified party is a party unless either (A) such settlement does
not include a statement as to or an admission of fault, culpability
or a failure to act by or on behalf of the indemnifying party or such
indemnified party and does not settle such action suit or proceeding
with respect to such indemnified party or (B) such settlement
includes an unconditional release of the indemnified party and does
not include a statement as to or an admission of fault, culpability
or a failure to act by or on behalf of the indemnified party.
(ii) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened action, suit or proceeding with respect to
which an indemnified party could have been but is not a party and
with respect to which indemnity could have been sought hereunder
unless such settlement does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf
of the indemnifying party or such indemnified party.
(e) Survival. Any losses, claims, damages, liabilities or expenses
for which an indemnified party is entitled to indemnification or contribution
under this Section 6 or Section 7 shall be paid by the indemnifying party to
the indemnified party as such losses, claims, damages, liabilities or expenses
are incurred. The indemnity and contribution agreements contained in this
Section 6 and Section 7 and the representations and warranties of the Fund and
the Adviser set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter, the Fund, the
Adviser, their trustees, their directors or officers, or any person
controlling the Fund or the Adviser, (ii) acceptance of any Shares and payment
therefor hereunder, and (iii) any termination of this Agreement. A successor
to any Underwriter or any person controlling any Underwriter, or to the Fund,
the Adviser, their trustees, their directors or officers, or any person
controlling the Fund or the Adviser, shall be entitled to the benefits of the
indemnity, contribution, and reimbursement agreements contained in this
Section 6 or Section 7.
(f) Notwithstanding any other provisions in this Section 6 or Section
7, no party shall be entitled to indemnification or contribution under this
Agreement against any loss, claim, liability, expense or damage arising by
reason of such person's willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties in the performance of its duties hereunder.
SECTION 7. Contribution.
(a) If the indemnification provided for in Section 6 is unavailable
to an indemnified party under paragraphs (a) or (c) thereof in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Fund and the Adviser on the one hand (treated jointly for this purpose as one
person) and the Underwriters on the other hand from the offering of the
Shares, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Fund and the Adviser on the one hand (treated jointly
for this purpose as one person) and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Fund and the
Adviser on the one hand (treated jointly for this purpose as one person) and
the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received
by the Fund bear to the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault of the Fund and the Adviser on the one
hand (treated jointly for this purpose as one person) and the Underwriters on
the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Fund and the Adviser on the one hand (treated jointly for this
purpose as one person) or by the Underwriters on the other hand and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(b) The Fund, the Adviser and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by a pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (a)
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities and expenses referred to in paragraph (a)
above shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price of the Shares underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to
this Section 7 are several in proportion to the respective numbers of Shares
set forth opposite their names in Schedule A hereto and not joint. For
purposes of this Section 7, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as such Underwriter, and each
trustee and shareholder of the Fund and each director of the Adviser,
respectively, each officer of the Fund who signed the Registration Statement,
and each person, if any, who controls the Fund or the Adviser, within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Fund and the Adviser, respectively.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and covenants contained in this
Agreement or in certificates of officers of the Fund or the Adviser submitted
pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Fund or the Adviser, and shall
survive delivery of the Shares to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Fund, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Fund or the Adviser,
whether or not arising in the ordinary course of business, or (ii) if there
has occurred any material adverse change in the financial markets in the
United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which
is such as to make it, in the judgment of the Representatives, impracticable
or inadvisable to market the Shares or to enforce contracts for the sale of
the Shares, or (iii) if trading in any securities of the Fund has been
suspended or materially limited by the Commission or the NYSE, or if trading
generally on the NYSE or the American Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required,
by any of said exchanges or by such system or by order of the Commission, the
NASD or any other governmental authority, or a material disruption has
occurred in commercial banking or securities settlement or clearance services
in the United States, or (iv) if a banking moratorium has been declared by
either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7, 8 and 13 shall survive such termination and remain in full
force and effect.
SECTION 10. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at Closing Time or a
Date of Delivery to purchase the Shares which it or they are obligated to
purchase under this Agreement (the "Defaulted Shares"), the Representatives
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Shares in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Shares does not exceed 10% of the
number of Shares to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Shares exceeds 10% of the number of
Shares to be purchased on such date, this Agreement or, with respect to any
Date of Delivery which occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Fund to sell the Option Preferred Shares
to be purchased and sold on such Date of Delivery shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, or, in the case of a Date of Delivery which is
after the Closing Time, which does not result in a termination of the
obligation of the Underwriters to purchase and the Fund to sell the relevant
Option Preferred Shares, as the case may be, either the Representatives or the
Fund shall have the right to postpone Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or Prospectus or
in any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Tax Disclosure.
Notwithstanding any other provision of this Agreement, from the
commencement of discussions with respect to the transactions contemplated
hereby, the Fund and the Adviser (and each employee, representative or other
agent of the Fund) may disclose to any and all persons, without limitation of
any kind, the tax treatment and tax structure (as such terms are used in
Sections 6011, 6111 and 6112 of the U.S. Code and the Treasury Regulations
promulgated thereunder) of the transactions contemplated by this Agreement and
all materials of any kind (including opinions or other tax analyses) that are
provided relating to such tax treatment and tax structure.
SECTION 12. Notices.
All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representatives, Xxxxxxx Xxxxx & Co., 4 World Financial
Center, New York, New York 10080, attention of Equity Capital Markets; and
notices to the Fund or the Adviser shall be directed, as appropriate, to the
office of Gabelli Asset Management, One Xxxxxxxxx Xxxxxx, Xxx, Xxx Xxxx
00000-0000, Attention: Xxxxx X. XxXxx.
SECTION 13. Parties.
This Agreement shall each inure to the benefit of and be binding upon
the Underwriters, the Fund, the Adviser and their respective partners and
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Fund, the Adviser and their respective successors and the
controlling persons and officers and trustees referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Underwriters, the
Fund, the Adviser and their respective partners and successors, and said
controlling persons and officers, trustees, shareholder and directors and
their heirs and legal representatives, and for the benefit of no other person,
firm or corporation. No purchaser of Shares from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN SAID STATE. UNLESS OTHERWISE EXPLICITLY PROVIDED, SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
[signatures on following page]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Underwriters, the Fund and the Adviser in accordance with its terms.
Very truly yours,
THE GABELLI DIVIDEND & INCOME TRUST
By:______________________________________
Name:
Title:
GABELLI FUNDS, LLC
By:_____________________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
GABELLI & COMPANY, INC.
[other Co-Managers]
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By:_____________________________________
Authorized Signatory
For themselves and as
Representatives of the
other Underwriters
named in Schedule A hereto.
SCHEDULE A
Number of Number of
Name of Underwriter AMPS Preferred Shares
------------------- --------- ----------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated....................
Gabelli & Company, Inc. .......................
Total...........................
SCHEDULE B
The Gabelli Dividend & Income Trust
[ ] Preferred Shares, Series A
Liquidation Preference [$25] per share
[ ] Auction Market Preferred Shares, Series B
Liquidation Preference [$25,000] per share
1. The initial public offering price per share for the AMPS,
determined as provided in said Section 2, shall be $[25,000].
2. The purchase price per share for the AMPS to be paid by the
several Underwriters shall be $[24,750], such discount from the initial public
offering price representing the commission to be paid to the Underwriters for
their commitment hereunder of $[250].
3. The initial dividend rate of the AMPS, Series B, shall be [ ]% per
annum.
4. The initial public offering price per share for the Preferred
Shares, determined as provided in said Section 2, shall be $[25].
5. The purchase price per share for the Preferred Shares to be paid
by the several Underwriters shall be $[ ], such discount from the initial
public offering price representing the commission to be paid to the
Underwriters for their commitment hereunder of $[ ].
6. The dividend rate of the Preferred Shares, Series A, shall be [ ]%
per annum.
Exhibit A
FORM OF OPINION OF FUND'S
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(A) With respect to the Fund:
(i) The Fund has been duly organized and is validly existing as
a statutory trust in good standing under the laws of the State of
Delaware.
(ii) The Fund has the power and authority to own, lease and
operate its properties and to conduct its business as described in
the Prospectus and to enter into and perform its obligations under
the Purchase Agreement.
(iii) The Fund is duly qualified as a foreign 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) To the best of our knowledge, the Fund does not have any
subsidiaries.
(v) The authorized, issued and outstanding Shares of the Fund
are as set forth in the Prospectus under the caption "Description of
the Series A Preferred and Series B AMPS" (except for subsequent
issuances, if any, pursuant to the Purchase Agreement); all issued
and outstanding Shares of the Fund have been duly authorized and
validly issued and are fully paid and non-assessable, except as
provided for in the Fund's Charter, and have been offered and sold or
exchanged by the Fund in compliance with all applicable laws
(including, without limitation, federal and state securities laws);
the 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 Shares of the Fund was issued in violation of the preemptive
or other similar rights of any securityholder of the Fund.
(vi) The Shares to be purchased by the Underwriters from the
Fund have been duly authorized for issuance and sale to the
Underwriters pursuant to the Purchase Agreement and, when issued and
delivered by the Fund pursuant to the Purchase Agreement against
payment of the consideration set forth in the Purchase Agreement,
will be validly issued and fully paid and non-assessable, except as
provided for in the Fund's Charter, and no holder of the Shares is or
will be subject to personal liability by reason of being such a
holder.
(vii) The issuance of the Shares are not subject to preemptive
or other similar rights of any securityholder of the Fund.
(viii) The Purchase Agreement has been duly authorized,
executed and delivered by the Fund.
(ix) The Preferred Shares have been authorized for listing,
subject to notice of issuance, on the New York Stock Exchange (the
"NYSE"); the form of the certificate for the Preferred Shares
conforms to the requirements of the NYSE;
(x) The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933
Act and the 1940 Act; any required filing of the Prospectus pursuant
to Rule 497(c) or Rule 497(h) has been made in the manner and within
the time period required by Rule 497; and, to the best of our
knowledge, no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has
been issued under the 1933 Act, and, to the best of our knowledge, no
order of suspension or revocation of registration pursuant to Section
8(e) of the 1940 Act has been issued, and no proceedings for any such
purpose have been instituted or are pending or threatened by the
Commission.
(xi) 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 1933 Act, the 1940 Act and the
Rules and Regulations.
(xii) 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.
(xiii) Each form of certificate used to evidence the Shares
complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the Charter, bylaws
and Statement of Preferences of the Fund and the requirements of the
New York Stock Exchange.
(xiv) To the best of our knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or investigation, to
which the Fund is a party, or to which the property of the Fund is
subject, before or brought by any court or governmental agency or
body, domestic or foreign, which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties or assets
of the Fund or the consummation of the transactions contemplated in
the Purchase Agreement or the performance by the Fund of its
obligations thereunder.
(xv) The information in the Prospectus under "Description of
the Series A Preferred and Series B AMPS" and "Taxation" and in the
Registration Statement under Item 29 (Indemnification), to the extent
that it constitutes matters of law, summaries of legal matters, the
Fund's Charter, bylaws, Statement of Preferences or legal
proceedings, or legal conclusions, has been reviewed by us and is
correct in all material respects.
(xvi) Each of the Investment Advisory Agreement, the
Administration Agreement, the Custodian Agreement, the Transfer and
Dividend Disbursing Agency and Registrar Agreement, the Auction
Agency Agreement and the Purchase Agreement comply in all material
respects with all applicable provisions of the 1940 Act, the Advisers
Act, the Rules and Regulations and the Advisers Act Rules and
Regulations.
(xvii) The Fund is duly registered with the Commission under
the 1940 Act as a closed-end diversified management investment
company; and, to the best of our knowledge, no order of suspension or
revocation of such registration has been issued or proceedings
therefor initiated or threatened by the Commission.
(xviii) To the best of our knowledge, no person is serving as
an officer, trustee or investment adviser of the Fund except in
accordance with the 1940 Act and the Rules and Regulations and the
Advisers Act and the Advisers Act Rules and Regulations. Except as
disclosed in the Registration Statement and Prospectus (or any
amendment or supplement to either of them), to the best of our
knowledge, no trustee of the Fund is an "interested person" (as
defined in the 1940 Act) of the Fund or an "affiliated person" (as
defined in the 1940 Act) of an Underwriter.
(xix) There are no statutes or regulations that are required to
be described in the Prospectus that are not described as required.
(xx) All descriptions in the Registration Statement of
contracts and other documents to which the Fund is a party are
accurate in all material respects. To the best of our knowledge,
there are no franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be filed
as exhibits thereto other than those described or referred to therein
or filed or incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct in all
material respects.
(xxi) To the best of our knowledge, the Fund is not in
violation of its Charter or bylaws and no default by the Fund exists
in the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement
or instrument that is described or referred to in the Registration
Statement or the Prospectus or filed or incorporated by reference as
an exhibit to the Registration Statement.
(xxii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court
or governmental authority or agency (other than under the 1933 Act,
the 1934 Act, the 1940 Act and the Rules and Regulations, which have
been obtained, or as may be required under the securities or blue sky
laws of the various states, as to which we need express no opinion)
is necessary or required in connection with the due authorization,
execution and delivery of the Purchase Agreement or for the offering,
issuance or sale of the Shares or the consummation of the
transactions contemplated by this Agreement.
(xxiii) The execution, delivery and performance of the Purchase
Agreement and the consummation of the transactions contemplated in
the Purchase Agreement and in the Registration Statement (including
the issuance and sale of the Shares and the use of the proceeds from
the sale of the Shares as described in the Prospectus under the
caption "Use of Proceeds") and compliance by the Fund with its
obligations under the Purchase Agreement do not and will not, whether
with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or Repayment
Event (as defined in Section 1(a)(xii) of the Purchase Agreement)
under or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Fund pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, known to
us, to which the Fund is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Fund is
subject, nor will such action result in any violation of the
provisions of the charter or bylaws of the Fund, or any applicable
law, statute, rule, regulation, judgment, order, writ or decree,
known to us, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Fund or any of its
properties, assets or operations.
(xxiv) The Purchase Agreement, the Investment Advisory
Agreement, the Administration Agreement, the Custodian Agreement, the
Transfer and Dividend Disbursing Agency and Registrar Agreement and
the Auction Agency Agreement have each been duly authorized by all
requisite action on the part of the Fund, executed and delivered by
the Fund, as of the dates noted therein. Assuming due authorization,
execution and delivery by the other parties thereto with respect to
the Administration Agreement, Custodian Agreement, the Transfer and
Dividend Disbursing Agency and Registrar Agreement and the Auction
Agency Agreement, each of the Investment Advisory Agreement, the
Administration Agreement, the Custodian Agreement, the Transfer and
Dividend Disbursing Agency and Registrar Agreement and the Auction
Agency Agreement constitutes a valid and binding agreement of the
Fund, 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.
In addition, we have participated in the preparation of the
Registration Statement and the Prospectus and participated in discussions with
certain officers, trustees and employees of the Fund, representatives of
PricewaterhouseCoopers LLP, the independent accountants who examined the
statement of assets and liabilities of the Fund included or incorporated by
reference in the Registration Statement and the Prospectus, and you and your
representatives and we have reviewed certain Fund records and documents. While
we have not independently verified and are not passing upon, and do not assume
any responsibility for, the accuracy, completeness or fairness of the
information contained in the Registration Statement and the Prospectus, except
to the extent necessary to enable us to give the opinions with respect to the
Fund in paragraphs (A)(v), (xiv) and (xix), on the basis of such participation
and review, nothing has come to our attention that would lead us to believe
that the Registration Statement (except for financial statements, supporting
schedules and other financial data included therein or omitted therefrom, as
to which we do not express any belief), at the time such Registration
Statement became effective, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus (except
for financial statements, supporting schedules and other financial data
included therein or omitted therefrom, as to which we do not express any
belief), at the time the Prospectus was issued, or at the Closing 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.
FORM OF OPINION OF ADVISER'S
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(B) With respect to the Adviser:
(i) The Adviser has been duly organized and is validly existing
as a limited liability company in good standing under the laws of the
State of Delaware.
(ii) The Adviser has full power and authority to own, lease and
operate its properties and to conduct its business as described in
the Prospectus and to enter into and perform its obligations under
the Purchase Agreement.
(iii) The Adviser is duly qualified as a foreign company to
transact business and is in good standing in each other jurisdiction
in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not result in a Material
Adverse Effect.
(iv) The Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by
the Advisers Act, the Advisers Act Rules and Regulations, the 1940
Act or the Rules and Regulations from acting under the Investment
Advisory Agreement for the Fund as contemplated by the Prospectus.
(v) The Purchase Agreement and the Investment Advisory
Agreement have been duly authorized, executed and delivered by the
Adviser, and the Investment Advisory Agreement constitutes a valid
and binding obligation of the Adviser, enforceable in accordance with
its terms, except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and general
equitable principles (whether considered in a proceeding in equity or
at law).
(vi) To the best of our knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or investigation, to
which the Adviser is a party, or to which the property of the Adviser
is subject, before or brought by any court or governmental agency or
body, domestic or foreign, which might reasonably be expected to
result in any material adverse change in the condition, financial or
otherwise, in the earnings, business affairs or business prospects of
the Adviser, materially and adversely affect the properties or assets
of the Adviser or materially impair or adversely affect the ability
of the Adviser to function as an investment adviser or perform its
obligations under the Investment Advisory Agreement or which is
required to be disclosed in the Registration Statement or the
Prospectus.
(vii) To the best of our knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than
those described or referred to therein or filed or incorporated by
reference as exhibits thereto, and the descriptions thereof or
references thereto are correct in all material respects.
(viii) To the best of our knowledge, the Adviser is not in
violation of its Charter, bylaws or other organizational documents
and no default by the Adviser exists in the due performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument that is
described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(ix) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court
or governmental authority or agency, domestic or foreign (other than
under the 1933 Act, the 1940 Act and the Rules and Regulations, which
have been obtained, or as may be required under the securities or
blue sky laws of the various states, as to which we need express no
opinion) is necessary or required in connection with the due
authorization, execution and delivery of the Purchase Agreement.
(x) The execution, delivery and performance of the Purchase
Agreement and the consummation of the transactions contemplated in
the Purchase Agreement and in the Registration Statement and
compliance by the Adviser with their obligations under the Purchase
Agreement do not and will not, whether with or without the giving of
notice or lapse of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined in Section 1(a)(xii) of
the Purchase Agreement) under or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Adviser pursuant to any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or any other agreement or
instrument, known to us, to which the Adviser is a party or by which
it or any of them may be bound, or to which any of the property or
assets of the Adviser is subject (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not have a
Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or bylaws of the Adviser,
or any applicable law, statute, rule, regulation, judgment, order,
writ or decree, known to us, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Adviser or any of its properties, assets or operations.
In addition, we have participated in the preparation of the
Registration Statement and the Prospectus and participated in discussions with
certain officers, trustees and employees of the Fund, representatives of
PricewaterhouseCoopers LLP, the independent accountants who examined the
statement of assets and liabilities of the Fund included or incorporated by
reference in the Registration Statement and the Prospectus, and you and your
representatives and we have reviewed certain Fund records and documents. While
we have not independently verified and are not passing upon, and do not assume
any responsibility for, the accuracy, completeness or fairness of the
information contained in the Registration Statement and the Prospectus, except
to the extent necessary to enable us to give the opinion with respect to the
Fund in paragraph (B)(vii), on the basis of such participation and review,
nothing has come to our attention that would lead us to believe that the
Registration Statement (except for financial statements, supporting schedules
and other financial data included therein or omitted therefrom, as to which we
do not express any belief), at the time such Registration Statement became
effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (except for financial
statements, supporting schedules and other financial data included therein or
omitted therefrom, as to which we do not express any belief), at the time the
Prospectus was issued, or at the Closing Time, 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.
