EXHIBIT h.1
___________ SHARES
CALAMOS CONVERTIBLE AND HIGH INCOME FUND
COMMON SHARES
UNDERWRITING AGREEMENT
_______, 2003
Citigroup Global Markets Inc.
[ ]
As Representatives of the Several Underwriters
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
The undersigned, Calamos Convertible and High Income Fund, a Delaware
statutory trust (the "Fund") and Calamos Asset Management, Inc., a [Delaware]
corporation (the "Investment Adviser") address you as Underwriters and as the
representatives (the "Representatives") of each of the other persons, firms and
corporations, if any, listed in Schedule I hereto (herein collectively called
"Underwriters"). The Fund proposes to issue and sell an aggregate of ______
shares (the "Firm Shares") of its common shares of beneficial interest, [$0.01]
par value per share (the "Common Shares"), to the several Underwriters. The Fund
also proposes to sell to the Underwriters, upon the terms and conditions set
forth in Section 2 hereof, up to an additional _____ Common Shares (the
"Additional Shares"). The Firm Shares and Additional Shares are hereinafter
collectively referred to as the "Shares".
The Fund and the Investment Adviser wish to confirm as follows their
agreements with you and the other several Underwriters on whose behalf you are
acting in connection with the several purchases of the Shares by the
Underwriters.
The Fund has entered into an investment management agreement with the
Investment Adviser dated as of May 1, 2003, a Custodian Agreement with The Bank
of New York dated as of March 21, 2003 and a Transfer Agency Agreement with The
Bank of New York dated as of May 30, 2003, and such agreements are herein
referred to as the "Management Agreement", the "Custodian Agreement" and the
"Transfer Agency Agreement", respectively. Collectively, the Management
Agreement, the Custodian Agreement and the Transfer Agency Agreement are herein
referred to as the "Fund Agreements". This Underwriting Agreement is herein
referred to as the "Agreement".
1. Registration Statement and Prospectus. The Fund has prepared and filed
with the Securities and Exchange Commission (the "Commission") in accordance
with the provisions of the Securities Act of 1933, as amended (the "1933 Act"),
the Investment Company Act of 1940,
as amended (the "1940 Act"), and the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Rules and Regulations") and the 1940 Act (the
"1940 Act Rules and Regulations" and together with the 1933 Act Rules and
Regulations, the "Rules and Regulations") a registration statement on Form N-2
(File Nos. 333-_____ and 811-_____) under the 1933 Act and the 1940 Act and may
pursuant to the Rules and Regulations prepare and file an additional
registration statement relating to a portion of the Shares pursuant to Rule
462(b) of the 1933 Act Rules and Regulations (a "462(b) Registration Statement")
(collectively, the "registration statement"), including a prospectus (including
any statement of additional information) relating to the Shares, and a
notification of registration of the Fund as an investment company under the 1940
Act on Form N-8A (the "1940 Act Notification"). The term "Registration
Statement" as used in this Agreement means the registration statement (including
all financial schedules and exhibits), as amended at the time it becomes
effective under the 1933 Act or, if the registration statement became effective
under the 1933 Act prior to the execution of this Agreement, as amended or
supplemented at the time it became effective prior to the execution of this
Agreement, and includes any information deemed to be included by Rule 430A under
the 1933 Act Rules and Regulations. If it is contemplated, at the time this
Agreement is executed, that a post-effective amendment to the registration
statement will be filed under the 1933 Act and must be declared effective before
the offering of the Shares may commence, the term "Registration Statement" as
used in this Agreement means the registration statement as amended by said
post-effective amendment. For the avoidance of doubt, if the Fund has filed a
462(b) Registration Statement, the term "Registration Statement" as used in this
Agreement shall include such 462(b) Registration Statement. The term
"Prospectus" as used in this Agreement means the prospectus (including the
statement of additional information) in the form included in the Registration
Statement or, if the prospectus (including the statement of additional
information) included in the Registration Statement omits information in
reliance on Rule 430A and such information is included in a prospectus
(including the statement of additional information) filed with the Commission
pursuant to Rule 497(h) under the 1933 Act Rules and Regulations, the term
"Prospectus" as used in this Agreement means the prospectus (including the
statement of additional information) in the form included in the Registration
Statement as supplemented by the addition of the information contained in the
prospectus (including the statement of additional information) filed with the
Commission pursuant to Rule 497(h). The term "Prepricing Prospectus" as used in
this Agreement means the prospectus (including the statement of additional
information) subject to completion in the form included in the registration
statement at the time of the initial filing of the registration statement with
the Commission and as such prospectus (including the statement of additional
information) shall have been amended from time to time prior to the date of the
Prospectus, together with any other prospectus (including any other statement of
additional information) relating to the Fund other than the Prospectus.
The Fund has furnished the Representatives with copies of such
registration statement, each amendment to such registration statement filed with
the Commission and each Prepricing Prospectus.
2. Agreements to Sell and Purchase. The Fund hereby agrees, subject to all
the terms and conditions set forth herein, to issue and to sell to each
Underwriter and, upon the basis of the
2
representations, warranties and agreements of the Fund and the Investment
Adviser herein contained and subject to all of the other terms and conditions
set forth herein, each Underwriter agrees, severally and not jointly, to
purchase from the Fund at a purchase price per share of $14.325 (the "purchase
price per share"), the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number of Firm Shares increased as set
forth in Section 10 hereof).
The Fund also agrees, subject to all the terms and conditions set forth
herein, to issue and to sell to the Underwriters and, upon the basis of the
representations, warranties and agreements of the Fund and the Investment
Adviser herein contained and subject to all the terms and conditions set forth
herein, the Underwriters shall have the right to purchase from the Fund, at the
purchase price per share, pursuant to an option (the "over-allotment option")
which may be exercised at any time and from time to time prior to 9:00 P.M., New
York City time, on the 45th day after the date of the Prospectus (or if such
45th day shall be a Saturday or a Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange (the "NYSE") is open for trading) up
to an aggregate of ________ Additional Shares. Additional Shares may be
purchased solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. Upon any exercise of the over-allotment
option, upon the basis of the representations, warranties and agreements of the
Fund and the Investment Adviser herein contained and subject to all of the other
terms and conditions set forth herein, each Underwriter agrees, severally and
not jointly, to purchase from the Fund the number of Additional Shares (subject
to such adjustments as you may determine to avoid fractional shares) which bears
the same proportion to the number of Additional Shares to be purchased by the
Underwriters as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I (or such number of Firm Shares increased as set forth
in Section 10 hereof) bears to the aggregate number of Firm Shares.
3. Terms of Public Offering . The Fund and the Investment Adviser have
been advised by you that the Underwriters propose to make a public offering of
their respective portions of the Firm Shares as soon after the Registration
Statement and this Agreement have become effective as in your judgment is
advisable and initially to offer the Firm Shares upon the terms set forth in the
Prospectus.
4. Delivery of Shares and Payments Therefor.
(a) Delivery to the Underwriters of and payment to the Fund for the
Firm Shares shall be made at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or through the facilities of
the Depository Trust Company or another mutually agreeable facility, at
9:00 A.M., New York City time, on _____, 2003 (the "Closing Date"). The
place of closing for the Firm Shares and the Closing Date may be varied by
agreement between you and the Fund.
(b) Delivery to the Underwriters of and payment to the Fund for any
Additional Shares to be purchased by the Underwriters shall be made at the
aforementioned office of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., or through the
facilities of the Depository Trust Company or another mutually agreeable
facility, at such time on such
3
date (an "Option Closing Date"), which may be the same as the Closing
Date, but shall in no event be earlier than the Closing Date nor earlier
than two nor later than three business days after the giving of the notice
hereinafter referred to, as shall be specified in a written notice from
you on behalf of the Underwriters to the Fund of the Underwriters'
determination to purchase a number, specified in said notice, of
Additional Shares. The place of closing for any Additional Shares and the
Option Closing Date for such Additional Shares may be varied by agreement
between you and the Fund.
5. Agreements of the Fund and the Investment Adviser. The Fund and the
Investment Adviser, jointly and severally, agree with the several Underwriters
as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective under the 1933 Act before the offering of
the Firm Shares may commence, the Fund will use its reasonable best
efforts to cause the Registration Statement or such post-effective
amendment to become effective under the 1933 Act as soon as possible. If
the Registration Statement has become effective and the Prospectus
contained therein omits certain information at the time of effectiveness
pursuant to Rule 430A of the 1933 Act Rules and Regulations, the Fund will
file a Prospectus including such information pursuant to Rule 497(h) of
the 1933 Act Rules and Regulations, as promptly as practicable, but no
later than the second business day following the earlier of the date of
the determination of the offering price of the Shares or the date the
Prospectus is first used after the effective date of the Registration
Statement. If the Registration Statement has become effective and the
Prospectus contained therein does not so omit such information, the Fund
will file a Prospectus pursuant to Rule 497 (c) or (j) of the 1933 Act
Rules and Regulations as promptly as practicable, but no later than the
fifth business day following the date of the later of the effective date
of the Registration Statement or the commencement of the public offering
of the Shares after the effective date of the Registration Statement. The
Fund will advise you promptly and, if requested by you, will confirm such
advice in writing (i) when the Registration Statement or such
post-effective amendment has become effective and (ii) when the Prospectus
has been timely filed pursuant to Rule 497(c) or Rule 497(h) of the 1933
Act Rules and Regulations or the certification permitted pursuant to Rule
497(j) of the 1933 Act Rules and Regulations has been timely filed,
whichever is applicable.
(b) The Fund will advise you promptly and, if requested by you, will
confirm such advice in writing: (i) of any request made by the Commission
for amendment of or a supplement to the Registration Statement, any
Prepricing Prospectus or the Prospectus (or any amendment or supplement to
any of the foregoing) or for additional information, (ii) of the issuance
by the Commission, the National Association of Securities Dealers, Inc.
(the "NASD"), any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official of any order
suspending the effectiveness of the Registration Statement, prohibiting or
suspending the use of the Prospectus, any Prepricing Prospectus or any
sales material (as hereinafter defined), of any notice pursuant to Section
8(e) of the 1940 Act, of the suspension of qualification of the Shares
4
for offering or sale in any jurisdiction, or the initiation or
contemplated initiation of any proceeding for any such purposes, (iii) of
receipt by the Fund, the Investment Adviser, any affiliate of the Fund or
the Investment Adviser or any representative or attorney of the Fund or
the Investment Adviser of any other material communication from the
Commission, the NASD, any state securities commission, any national
securities exchange, any arbitrator, any court or any other governmental,
regulatory, self-regulatory or administrative agency or any official
relating to the Fund (if such communication relating to the Fund is
received by such person within three years after the date of this
Agreement), the Registration Statement, the 1940 Act Notification, the
Prospectus, any Prepricing Prospectus, any sales material (as hereinafter
defined) (or any amendment or supplement to any of the foregoing), this
Agreement or any of the Fund Agreements and (iv) within the period of time
referred to in paragraph (f) below, of any material, adverse change in the
condition (financial or other), business, prospects, properties, net
assets or results of operations of the Fund or the Investment Adviser or
of the happening of any event which makes any statement of a material fact
made in the Registration Statement, the Prospectus, any Prepricing
Prospectus or any sales material (as hereinafter defined) (or any
amendment or supplement to any of the foregoing) untrue or which requires
the making of any additions to or changes in the Registration Statement,
the Prospectus, any Prepricing Prospectus or any sales materials (as
hereinafter defined) (or any amendment or supplement to any of the
foregoing) in order to state a material fact required by the 1933 Act, the
1940 Act or the Rules and Regulations to be stated therein or necessary in
order to make the statements therein (in the case of a prospectus, in
light of the circumstances under which they were made) not misleading or
of the necessity to amend or supplement the Registration Statement, the
Prospectus, any Prepricing Prospectus or any sales material (as
hereinafter defined) (or any amendment or supplement to any of the
foregoing) to comply with the 1933 Act, the 1940 Act, the Rules and
Regulations or any other law or order of any court or regulatory body. If
at any time the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
official shall issue any order suspending the effectiveness of the
Registration Statement, prohibiting or suspending the use of the
Prospectus, any Prepricing Prospectus or any sales material (as
hereinafter defined) (or any amendment or supplement to any of the
foregoing) or suspending the qualification of the Shares for offering or
sale in any jurisdiction, the Fund will use its reasonable best efforts to
obtain the withdrawal of such order at the earliest possible time.
(c) The Fund will furnish to you, without charge, three signed
copies of the registration statement and the 1940 Act Notification as
originally filed with the Commission and of each amendment thereto,
including financial statements and all exhibits thereto (except any
post-effective amendment required by Rule 8b-16 of the 1940 Act Rules and
Regulations which is filed with the Commission after the later of (x) one
year from the date of this Agreement and (y) the date on which the
distribution of the Shares is completed) and will also furnish to you,
without charge, such number of conformed copies of the registration
statement as originally filed and of each amendment thereto (except any
post-effective amendment required by Rule 8b-16 of the 1940 Act
5
Rules and Regulations which is filed with the Commission after the later
of (x) one year from the date of this Agreement and (y) the date on which
the distribution of the Shares is completed), with or without exhibits, as
you may reasonably request.
(d) The Fund will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus, any
Prepricing Prospectus or any sales material (as hereinafter defined) (or
any amendment or supplement to any of the foregoing) of which you shall
not previously have been advised or to which you shall reasonably object
within a reasonable time after being so advised or (ii) so long as, in the
opinion of counsel for the Underwriters, a Prospectus is required to be
delivered in connection with sales by any Underwriter or dealer, file any
information, documents or reports pursuant to the Securities Exchange Act
of 1934, as amended (the "1934 Act"), without delivering a copy of such
information, documents or reports to you, as Representatives of the
Underwriters, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the Fund
has delivered to you, without charge, in such quantities as you have
reasonably requested, copies of each form of any Prepricing Prospectus.
The Fund consents to the use, in accordance with the provisions of the
1933 Act and with the securities or Blue Sky laws of the jurisdictions in
which the Shares are offered by the several Underwriters and by dealers,
prior to the date of the Prospectus, of each Prepricing Prospectus so
furnished by the Fund.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time, for such period as in the
opinion of counsel for the Underwriters a prospectus is required by the
1933 Act to be delivered in connection with sales of Shares by any
Underwriter or dealer, the Fund will expeditiously deliver to each
Underwriter and each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as you may
reasonably request. The Fund consents to the use of the Prospectus (and of
any amendments or supplements thereto) in accordance with the provisions
of the 1933 Act and with the securities or Blue Sky laws of the
jurisdictions in which the Shares are offered by the several Underwriters
and by all dealers to whom Shares may be sold, both in connection with the
offering or sale of the Shares and for such period of time thereafter as
the Prospectus is required by law to be delivered in connection with sales
of Shares by any Underwriter or dealer. If during such period of time any
event shall occur that in the judgment of the Fund or in the opinion of
counsel for the Underwriters is required to be set forth in the Prospectus
(as then amended or supplemented) or should be set forth therein in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading or if it is necessary to supplement or
amend the Prospectus to comply with the 1933 Act, the 1940 Act, the Rules
and Regulations or any other law, rule or regulation, the Fund will
forthwith prepare and, subject to the provisions of paragraph (d) above,
file with the Commission an appropriate amendment or supplement thereto
and will expeditiously furnish to the Underwriters and dealers, without
charge, such number of copies thereof as they shall reasonably request. In
the event that the Prospectus is to be amended or supplemented, the Fund,
if requested by you, will promptly issue a press release
6
announcing or disclosing the matters to be covered by the proposed
amendment or supplement.
(g) The Fund will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers
under the securities or Blue Sky laws of such jurisdictions as you may
designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall the Fund be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to service of
process in suits, other than those arising out of the offering or sale of
the Shares, in any jurisdiction where it is not now so subject.
(h) The Fund will make generally available to its security holders
an earnings statement, which need not be audited, covering a twelve-month
period commencing after the effective date of the Registration Statement
and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which earnings statement shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act
Rules and Regulations.
(i) The Fund will comply with the undertaking set forth in paragraph
6 of Item 33 of Part C of the Registration Statement.
(j) During the period of five years hereafter, the Fund will furnish
to you (i) as soon as available, a copy of each report of the Fund mailed
to shareholders or filed with the Commission and (ii) from time to time
such other information concerning the Fund as you may reasonably request.
(k) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (other than pursuant to the
second paragraph of Section 10 hereof or by notice given by you
terminating this Agreement pursuant to Section 10 or Section 11 hereof) or
if this Agreement shall be terminated by the Underwriters because of any
failure or refusal on the part of the Fund or the Investment Adviser to
comply with the terms or fulfill any of the conditions of this Agreement,
the Fund and the Investment Adviser, jointly and severally, agree to
reimburse the Representatives for all out-of-pocket expenses (including
fees and expenses of counsel for the Underwriters) incurred by you in
connection herewith, but the Fund and the Investment Adviser shall in no
event be liable for any internal cost of the Underwriters or any loss of
anticipated profits or speculative, consequential or similar damages for
such termination.
(l) The Fund will direct the investment of the net proceeds of the
offering of the Shares in such a manner as to comply with the investment
objectives, policies and restrictions of the Fund as described in the
Prospectus.
(m) Except as provided in this Agreement or pursuant to any dividend
reinvestment plan of the Fund in effect on the date hereof, the Fund will
not sell, contract
7
to sell or otherwise dispose of, any Common Shares or any securities
convertible into or exercisable or exchangeable for Common Shares or grant
any options or warrants to purchase Common Shares, for a period of 180
days after the date of the Prospectus, without the prior written consent
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
(n) Except as stated in this Agreement and in the Prospectus,
neither the Fund nor the Investment Adviser have taken, nor will any of
them take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or manipulation
of the price of the Common Shares.
(o) The Fund will use its reasonable best efforts to have the Common
Shares listed, subject to notice of issuance, on the NYSE concurrently
with the effectiveness of the Registration Statement and to comply with
the rules and regulations of such exchange.
6. Representations and Warranties of the Fund and the Investment Adviser.
The Fund and the Investment Adviser, jointly and severally, represent and
warrant to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement
thereto, complied when so filed in all material respects with the
provisions of the 1933 Act, the 1940 Act and the Rules and Regulations.
(b) 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 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 (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading; except that this
representation and warranty does not apply to statements in or omissions
from the Registration Statement 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.
(c) All the outstanding Common Shares of the Fund have been duly
authorized and validly issued, are fully paid and, except as described in
the Registration Statement, nonassessable and are free of any preemptive
or similar rights; 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, except as
described in the Registration Statement, nonassessable and free of any
preemptive or
8
similar rights and the capital stock of the Fund conforms to the
description thereof in the Registration Statement and the Prospectus (and
any amendment or supplement to either of them).
(d) The Fund has been duly formed and is validly existing in good
standing as a statutory trust under the laws of the State of Delaware,
with full 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 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,
properties, net assets or results of operations of the Fund. The Fund has
no subsidiaries.
(e) There are no legal or governmental proceedings pending or, to
the knowledge of the Fund, 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 (or any
amendment or supplement to either of them) but are not described as
required by the 1933 Act, the 1940 Act or the Rules and Regulations and
there are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Registration
Statement or the Prospectus (or 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.
(f) The Fund is not in violation of its Declaration of Trust or
By-Laws or in material violation of any material law, ordinance,
administrative or governmental rule or regulation applicable to the Fund
or of any material decree of the Commission, the NASD, any state
securities commission, any national securities exchange, any arbitrator,
any court or any other governmental, regulatory, self-regulatory or
administrative agency or any official having jurisdiction over the Fund or
in breach or default in any material respect in the performance of any
obligation, agreement or condition contained in any material bond,
debenture, note or any other evidence of indebtedness or in 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.
(g) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement nor any of 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 which has not
yet been obtained or made with the Commission, the NASD, any national
securities exchange, any arbitrator, any court or any other governmental,
regulatory, self-regulatory or administrative agency or any official
(except compliance with the securities or Blue Sky laws of various
jurisdictions which have been or will be effected in accordance with this
Agreement and except for compliance with the filing requirements of the
NASD Division of Corporate Finance) or conflicts or will conflict with or
9
constitutes or will constitute a breach of the Declaration of Trust or
By-Laws of the Fund or (B) conflicts or will conflict with or constitutes
or will constitute a breach of or a default under, any material 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 materially violates or
will materially violate any material 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 material
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 the property or
assets of the Fund is subject.
(h) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), except as otherwise stated therein, (A) there has been
no material, adverse change in the condition (financial or other),
business, properties, net assets or results of operations of the Fund or
business prospects (other than as a result of a change in the financial
markets generally) of the Fund, whether or not arising in the ordinary
course of business, (B) there have been no transactions entered into by
the Fund which are material to the Fund other than those in the ordinary
course of its business as described in the Prospectus (and any amendment
or supplement thereto) and (C) there has been no dividend or distribution
of any kind declared, paid or made by the Fund on any class of its common
stock.
(i) The accountants, Ernst & Young LLP, who have audited or shall
audit at or prior to the Closing Date the Statement of Assets and
Liabilities included in the Registration Statement and the Prospectus (and
any amendment or supplement to either of them), are an independent public
accounting firm as required by the 1933 Act, the 1940 Act and the Rules
and Regulations.
(j) The financial statements, together with related schedules and
notes, included in the Registration Statement and the Prospectus (or any
amendment or supplement to either of them) present fairly the financial
position of the Fund on the basis stated 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 or the Prospectus (or any amendment
or supplement thereto) are accurately derived from such financial
statements and the books and records of the Fund.
(k) 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.
10
(l) 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 may be limited by federal
or state securities laws and subject to the qualification that the
enforceability of the Fund's obligations hereunder and thereunder may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and by general
equitable principles.
(m) 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, that is material to the Fund and there has not been
any change in the capital stock or material increase in the short-term
debt or long-term debt of the Fund.
(n) The Fund has not distributed and, prior to the later to occur of
(i) the Closing Date and (ii) completion of the distribution of the
Shares, will not distribute to the public in either printed or electronic
form any offering material in connection with the offering and sale of the
Shares other than the Registration Statement, the Prepricing Prospectus
included in Pre-Effective Amendment No.1 to the Registration Statement,
the Prospectus and the advertisements/sales literature filed by _______
with the NASD on ______, 2003.
(o) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus (and any amendment or supplement thereto); the Fund 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 Fund under any such permit,
subject in each case to such qualification as may be set forth in the
Prospectus (and any amendment or supplement thereto); 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 Fund.
(p) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization and with the investment policies and restrictions
of the Fund and the applicable requirements of the 1940 Act, the 1940 Act
Rules and Regulations and the Internal Revenue Code of 1986, as amended
(the "Code"); (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles, to calculate net asset value, to maintain
accountability for assets and to maintain material compliance with the
books and records requirements under the 1940 Act and the 1940 Act Rules
and
11
Regulations; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
account for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(q) 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.
(r) Except as stated in this Agreement and in the Prospectus (and
any amendment or supplement thereto), the Fund has not taken and will not
take, directly or indirectly, any action designed to or which should
reasonably be expected to cause or result in or which will constitute
stabilization or manipulation of the price of the Common Shares in
violation of federal securities laws and the Fund is not aware of any such
action taken or to be taken by any affiliates of the Fund.
(s) The Fund is duly registered under the 1940 Act as a closed-end,
diversified management investment company and the 1940 Act Notification
has been duly filed with the Commission and, at the time of filing thereof
and at the time of filing any amendment or supplement thereto, conformed
in all material respects with all applicable provisions of the 1940 Act
and the 1940 Act Rules and Regulations. The Fund has not received any
notice from the Commission pursuant to Section 8(e) of the 1940 Act with
respect to the 1940 Act Notification or the Registration Statement (or any
amendment or supplement to either of them).
(t) All advertising, sales literature or other promotional material
(including "prospectus wrappers" and "broker kits"), whether in printed or
electronic form, authorized in writing by or prepared by the Fund or the
Investment 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
1933 Act Rules and Regulations and the rules and interpretations of the
NASD and if required to be filed with the NASD under the NASD's conduct
rules were so filed. No 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.
(u) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1940 Act, the 1940
Act Rules and Regulations, the Investment Advisers Act of 1940, as amended
(the "Advisers Act") and the rules and regulations adopted by the
Commission under the Advisers Act (the "Advisers Act Rules and
Regulations").
(v) No holder of any security of the Fund has any right to require
registration of Common Shares or any other security of the Fund because of
the filing of the
12
registration statement or consummation of the transactions contemplated by
this Agreement.
(w) The Shares have been duly approved for listing upon notice of
issuance on the NYSE and the Fund's registration statement on Form 8-A,
under the 1934 Act, has become effective.
(x) The Fund intends to direct the investment of the proceeds of the
offering of the Shares in such a manner as to comply with the requirements
of Subchapter M of the Code.
7. Representations and Warranties of the Investment Adviser. The
Investment Adviser represents and warrants to each Underwriter as follows:
(a) The Investment Adviser is a corporation duly organized and
validly existing in good standing under the laws of the State of Delaware,
with full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them) and is duly registered and qualified to conduct business and is in
good standing in each jurisdiction or place where the nature of its
properties or conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify would
not have a material, adverse effect on the condition (financial or other),
business, properties, net assets or results of operations of the
Investment Adviser.
(b) The Investment Adviser is duly registered as an investment
adviser under the Advisers Act and is not prohibited by the Advisers Act,
the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules
and Regulations from acting under the Management Agreement for the Fund as
contemplated by the Registration Statement and the Prospectus (or any
amendment or supplement thereto).
(c) The Investment Adviser has full power and authority to enter
into the Management Agreement; the execution and delivery of, and the
performance by the Investment Adviser of its obligations under, this
Agreement and the Management Agreement have been duly and validly
authorized by the Investment Adviser; and this Agreement and the
Management Agreement have been duly executed and delivered by the
Investment Adviser and constitute the valid and legally binding agreements
of the Investment Adviser, enforceable against the Investment Adviser in
accordance with their terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws
and subject to the qualification that the enforceability of the Investment
Adviser's obligations hereunder and thereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws relating
to or affecting creditors' rights generally and by general equitable
principles.
(d) The Investment Adviser has the financial resources available to
it necessary for the performance of its services and obligations as
contemplated in the Registration
13
Statement and the Prospectus (or any amendment or supplement thereto) and
under this Agreement and the Management Agreement.
(e) The description of the Investment Adviser and its business, and
the statements attributable to the Investment Adviser, in the Registration
Statement and the Prospectus (and any amendment or supplement thereto)
complied and comply in all material respects with the provisions of the
1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and
the Advisers Act Rules and Regulations and 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 the case of a prospectus, in light of the circumstances under which
they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to
the knowledge of the Investment Adviser, threatened against the Investment
Adviser or to which 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 reasonably should be expected to result in any material,
adverse change in the condition (financial or other), business,
properties, net assets or results of operations of the Investment Adviser
or that reasonably should have a material, adverse effect on the ability
of the Investment Adviser to fulfill its obligations hereunder or under
the Management Agreement.
(g) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), except as otherwise stated therein, (A) there has been
no material, adverse change in the condition (financial or other),
business, properties, net assets or results of operations or business
prospects of the Investment Adviser, whether or not arising from the
ordinary course of business and (B) there have been no transactions
entered into by the Investment Adviser which are material to the
Investment Adviser other than those in the ordinary course of its business
as described in the Prospectus.
(h) The Investment Adviser has such licenses, permits and
authorizations of governmental or regulatory authorities ("permits") as
are necessary to own its property and to conduct its business in the
manner described in the Prospectus; the Investment 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 Investment Adviser under any such
permit.
(i) This Agreement and the Management Agreement comply in all
material respects with all applicable provisions of the 1940 Act, the 1940
Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(j) Neither the execution, delivery or performance of this Agreement
or the Management Agreement, nor the consummation by the Investment
Adviser of the transactions contemplated hereby or thereby (A) requires
any consent, approval,
14
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 or any other governmental,
regulatory, self-regulatory or administrative agency or any official
(except compliance with the securities or Blue Sky laws of various
jurisdictions which have been or will be effected in accordance with this
Agreement and except for compliance with the filing requirements of the
NASD Division of Corporate Finance) or conflicts or will conflict with or
constitutes or will constitute a breach of or a default under, the
Certificate of Incorporation or By-Laws of the Investment Adviser or (B)
conflicts or will conflict with or constitutes or will constitute a breach
of or a default under, any material agreement, indenture, lease or other
instrument to which the Investment Adviser is a party or by which it or
any of its properties may be bound or materially violates or will
materially violate any material statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Investment Adviser
or any of its properties or will result in the creation or imposition of
any material lien, charge or encumbrance upon any property or assets of
the Investment 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 Investment Adviser is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in
any amendment or supplement thereto), the Investment Adviser has not taken
and nor will it take, directly or indirectly, any action designed to or
which should reasonably be expected to cause or result in or which will
constitute, stabilization or manipulation of the price of the Common
Shares in violation of federal securities laws and the Investment Adviser
is not aware of any such action taken or to be taken by any affiliates of
the Investment Adviser.
(l) In the event that the Fund or the Investment Adviser makes
available any promotional materials intended for use only by qualified
broker-dealers and registered representatives thereof by means of an
Internet web site or similar electronic means, the Investment Adviser will
install and maintain pre-qualification and password-protection or similar
procedures which are reasonably designed to effectively prohibit access to
such promotional materials by persons other than qualified broker-dealers
and registered representatives thereof.
8. Indemnification and Contribution.
(a) The Fund and the Investment 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, joint or several (including reasonable costs of investigation)
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 Prepricing 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 (in
15
the case of a prospectus, in light of the circumstances under which they
were made) 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 Underwriters 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 foregoing indemnity
with respect to the Registration Statement, the Prospectus or any
Prepricing Prospectuses (or any amendment or supplement to any of the
foregoing) shall not inure to the benefit of any Underwriter from whom the
person asserting any loss, claim, damage, liability or expense purchased
Shares, if it is shown that a copy of the Prospectus, as then amended or
supplemented, which would have cured any defect giving rise to such loss,
claim, damage, liability or expense was not sent or delivered to such
person by or on behalf of such Underwriter, if required by law to be so
delivered, at or prior to the confirmation of the sale of such Shares to
such person and such Prospectus, amendments and supplements had been
provided by the Fund to the Underwriters in the requisite quantity and on
a timely basis to permit proper delivery. The foregoing indemnity
agreement shall be in addition to any liability which the Fund or the
Investment Adviser may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Fund or the Investment Adviser, such
Underwriter or such controlling person shall promptly notify the Fund or
the Investment Adviser and the Fund or the Investment Adviser shall assume
the defense thereof, including the employment of counsel and the payment
of all fees and expenses. 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
controlling person unless (i) the Fund or the Investment Adviser have
agreed in writing to pay such fees and expenses, (ii) the Fund and the
Investment Adviser have failed within a reasonable time 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 Investment
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 Investment 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 Investment 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 Investment 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 if there is any action, suit or proceeding in more than one
jurisdiction) at any time for all
16
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and that, subject to
the requirements of 1940 Act Release No. 11330, all such fees and expenses
shall be reimbursed promptly as they are incurred. The Fund and the
Investment Adviser shall not be liable for any settlement of any such
action, suit or proceeding effected without the written consent of the
Fund or the Investment Adviser, 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 Investment 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,
liability, damage or expense by reason by such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Fund and the Investment Adviser, their trustees,
directors, any officers of the Fund who sign the Registration Statement
and any person who controls the Fund or the Investment 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
Investment 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 the Prepricing Prospectus (or
any amendment or supplement to any of the foregoing). If any action, suit
or proceeding shall be brought against the Fund or the Investment Adviser,
any of their trustees, directors, any such officer or any such controlling
person, based on the Registration Statement, the Prospectus or the
Prepricing Prospectus (or any amendment or supplement to any of the
foregoing) 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 by paragraph (b) above (except
that if the Fund or the Investment 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 Investment Adviser, their trustees, 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 which the
Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof 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 Investment 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)
17
above but also the relative fault of the Fund and the Investment Adviser
on the one hand (treated jointly for this purpose as one person) and of
the Underwriters on the other hand in connection with the statements or
omissions which 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 Investment Adviser on the
one hand (treated jointly for this purpose as one person) and the
Underwriters on the other hand shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Fund as set forth in the table on the cover page
of the Prospectus bear to the total payments received by the Underwriters
with respect to the Firm Shares as set forth in the table on the cover
page of the Prospectus. The relative fault of the Fund and the Investment
Adviser on the one hand (treated jointly for this purpose as one person)
and of 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 Investment
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.
(e) The Fund, the Investment Adviser and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation (even if the 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 (d) 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 (d) 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
defending any such action, suit or proceeding. Notwithstanding the
provisions of this Section 8, 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 ▇▇▇▇ ▇▇▇) 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 8 are several in proportion to the respective number of Firm
Shares set forth opposite their names in Schedule I (or such numbers of
Firm Shares increased as set forth in Section 10 hereof) and not joint.
(f) 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 in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability from
claimants on claims that are the subject matter of such action, suit or
proceeding.
18
(g) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under
this Section 8 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 8 and the representations and warranties of the Fund and the
Investment 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 Investment Adviser or their trustees, directors or officers
or any person controlling the Fund or the Investment Adviser, (ii)
acceptance of any Shares and payment therefor hereunder and (iii) any
termination of this Agreement. A successor to any Underwriter or to the
Fund, the Investment Adviser or their trustees, directors or officers or
any person controlling any Underwriter, the Fund or the Investment Adviser
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 8.
9. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters to purchase any Shares hereunder are subject to, in the good faith
judgment of the Underwriters, the accuracy of and compliance with the
representations, warranties and agreements of and by the Fund and the Investment
Adviser contained herein on and as of the date hereof, the date on which the
Registration Statement becomes or became effective, the date of the Prospectus
(and of any amendment or supplement thereto), the Closing Date and, with respect
to any Additional Shares, any Option Closing Date; to the accuracy and
completeness of all statements made by the Fund, the Investment Adviser or any
of their officers in any certificate delivered to the Representatives or their
counsel pursuant to this Agreement and to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the Registration Statement or such post-effective amendment
shall have become effective not later than 5:30 p.m., New York City time,
on the date hereof or at such later date and time as shall be consented to
in writing by you and all filings, if any, required by Rules 497 and 430A
under the 1933 Act Rules and Regulations shall have been timely made; no
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceeding for that purpose shall have been
instituted or, to the knowledge of the Fund, the Investment Adviser or any
Underwriter, threatened by the Commission and any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with to
your satisfaction.
(b) You shall have received on the Closing Date an opinion of
Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz, special counsel for the Fund and
Investment Adviser, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) The Fund is a statutory trust duly established, validly
existing and in good standing under the laws of the State of
Delaware with full power and
19
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 thereto through the date
of the opinion) and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction 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, properties, net assets
or results of operations of the Fund;
(ii) The authorized and outstanding capital stock of the Fund
is as set forth in the Registration Statement and Prospectus (or any
amendment or supplement thereto through the date of the opinion);
and the description of the authorized capital stock of the Fund
contained in the Prospectus (or any amendment or supplement thereto
through the date of the opinion) under the caption "Description of
Shares" conforms in all material respects as to legal matters to the
terms thereof contained in the Fund's Declaration of Trust;
(iii) All of the shares of capital stock of the Fund
outstanding prior to the issuance of the Shares have been duly
authorized and validly issued and are fully paid and nonassessable,
except that, as described in the Prospectus under the heading,
"Certain Provisions in the Declaration of Trust," shareholders of
the Fund may under certain circumstances be held personally liable
for its obligations;
(iv) 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 not subject to any preemptive rights that
entitle or will entitle any person to acquire any Shares upon the
issuance thereof by the Fund, except that, as described in the
Prospectus under the heading, "Certain Provisions in the Declaration
of Trust," shareholders of the Fund may under certain circumstances
be held personally liable for its obligations;
(v) The form of certificate for the Shares is in due and
proper form and complies with the requirements of all applicable
laws and the NYSE;
(vi) The Fund has the power and authority to enter into this
Agreement and the Fund Agreements and to issue, sell and deliver the
Shares to the Underwriters as provided herein and this Agreement and
each of the Fund Agreements have been duly authorized, executed and
delivered by the Fund and assuming due authorization, execution and
delivery by the other parties thereto and that the performance of
this Agreement and the Fund Agreements by such other parties will
not violate law, agreements to which such other parties or their
properties are subject or orders applicable to such other parties,
constitute the valid, legal and binding agreements of the Fund,
enforceable against the Fund in accordance with their terms, except
as enforcement of rights to indemnity hereunder may be limited by
Federal or state securities laws or principles of
20
public policy and subject to the qualification that the
enforceability of the Fund's obligations hereunder and thereunder
may be limited by bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors' rights generally
and by general equitable principles, whether enforcement is
considered in a proceeding in equity or at law;
(vii) This Agreement constitutes a valid, legal and binding
agreement of the Investment Adviser, enforceable against the
Investment Adviser in accordance with its terms, except as
enforcement of rights to indemnity hereunder may be limited by
Federal or state securities laws or principles of public policy and
subject to the qualification that the enforceability of the
Investment Adviser's obligations hereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general
equitable principles, whether enforcement is considered in a
proceeding in equity or at law;
(viii) The Fund Agreements comply in all material respects
with all applicable provisions of the 1933 Act, the 1940 Act, the
Advisers Act, the Rules and Regulations and the Advisers Act Rules
and Regulations;
(ix) The Fund is not in violation of its Declaration of
Trust or By-Laws or to the best knowledge of such counsel after
reasonable inquiry, is not in material default in the performance of
any material obligation, agreement or condition contained in any
bond, debenture, note or other evidence of indebtedness, except as
may be disclosed in the Prospectus (and any amendment or supplement
thereto);
(x) No consent, approval, authorization or order of or
registration or filing with the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental body, agency or
regulatory, self-regulatory or administrative agency or any official
is required on the part of the Fund (except as have been obtained
under the 1933 Act and the 1934 Act or such as may be required under
state securities or Blue Sky laws governing the purchase and
distribution of the Shares) for the valid issuance and sale of the
Shares to the Underwriters as contemplated by this Agreement,
performance of the Fund Agreements or this Agreement by the Fund,
the consummation by the Fund of the transactions contemplated
thereby or hereby or the adoption of the Fund's Dividend
Reinvestment Plan;
(xi) Neither the offer, sale or delivery of the Shares, the
execution, delivery or performance of this Agreement or the Fund
Agreements, compliance by the Fund with the provisions hereof or
thereof, consummation by the Fund of the transactions contemplated
hereby or thereby nor the adoption of the Fund's Dividend
Reinvestment Plan violates the Declaration of Trust or By-Laws of
the Fund or any material agreement, indenture, lease or other
instrument to which the Fund is a party or by which it or any of its
properties is bound that is an exhibit to
21
the Registration Statement or that is known to such counsel after
reasonable inquiry or, to the best of such counsel's knowledge after
reasonable inquiry, will result in the creation or imposition of any
material lien, charge or encumbrance upon any property or assets of
the Fund, nor, to the best of such counsel's knowledge after
reasonable inquiry, will any such action result in any violation of
any existing material law, regulation, ruling (assuming compliance
with all applicable state securities and Blue Sky laws), judgment,
injunction, order or decree known to such counsel after reasonable
inquiry, applicable to the Fund or any of its properties, except
that, in the published opinion of the Commission, the
indemnification provisions in this Agreement and the Fund
Agreements, insofar as they relate to indemnification for
liabilities arising under the 1933 Act, are against public policy as
expressed in the 1933 Act and therefore unenforceable;
(xii) The Registration Statement and all post-effective
amendments, if any, have become effective under the 1933 Act and, to
the best knowledge of such counsel after reasonable inquiry, no
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose are pending before
or contemplated by the Commission; and any filing of the Prospectus
and any amendments or supplements thereto required pursuant to Rule
497 of the 1933 Act Rules and Regulations prior to the date of such
opinion has been made in accordance with Rule 497;
(xiii) The Fund is duly registered with the Commission under
the 1940 Act as a closed-end, diversified management investment
company and all action has been taken by the Fund as required by the
1933 Act and the 1940 Act and the Rules and Regulations in
connection with the issuance and sale of the Shares to make the
public offering and consummate the sale of the Shares as
contemplated by this Agreement;
(xiv) The statements made in the Registration Statement and
the Prospectus (and any amendment or supplement to either of them
through the date of the opinion) under the caption ["Tax Matters"]
have been reviewed by such counsel and to the extent they describe
or summarize tax laws, doctrines or practices of the United States,
present a fair and accurate description or summary thereof as of the
date of the opinion;
(xv) The statements in the Registration Statement and
Prospectus (and any amendment or supplement to either of them
through the date of the opinion), insofar as they are descriptions
of contracts, agreements or other legal documents or refer to
statements of law or legal conclusions, are accurate and present
fairly the information required to be shown;
(xvi) The Registration Statement and the Prospectus (and any
amendment or supplement to either of them through the date of the
opinion) comply as to form in all material respects with the
requirements of the 1933 Act, the 1940 Act and the Rules and
Regulations (except that no opinion need be
22
expressed as to the financial statements and the notes thereto and
the schedules and other financial and statistical data included
therein as to which such counsel need not express any opinion);
(xvii) To the best knowledge of such counsel after reasonable
inquiry, (A) other than as described or contemplated in the
Prospectus (or any amendment or supplement thereto through the date
of the opinion), there are no actions, suits or other legal or
governmental proceedings pending or expressly threatened against the
Fund (through the date of the opinion) and (B) there are no material
agreements, contracts, indentures, leases or other instruments that
are required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement to either of them through
the date of the opinion) or to be filed as an exhibit to the
Registration Statement that are not described or filed as required,
as the case may be;
(xviii) To the best knowledge of such counsel after reasonable
inquiry, the Fund is not in violation 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 any other governmental, regulatory,
self-regulatory or administrative agency or any official having
jurisdiction over the Fund; and
(xix) The Shares are duly authorized for listing, subject to
official notice of issuance, on the NYSE and the Fund's registration
statement on Form 8-A under the 1934 Act is effective.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement, such counsel
has participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof, and
nothing has come to the attention of such counsel that has caused it to
believe that the Registration Statement, at the time the Registration
Statement became effective or the Prospectus, as of its date and as of the
Closing Date or the Option Closing Date, as the case may be, 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
(in the case of a prospectus, in light of the circumstances under which
they were made) not misleading or that any amendment or supplement to the
Prospectus, as of the Closing Date or the Option Closing Date, contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no view with respect to the
financial statements and the notes thereto and the schedules and other
financial and statistical data included in the Registration Statement or
the Prospectus).
In rendering such opinion, such counsel may limit such opinion to
matters involving the application of the laws of the State of Delaware[,
the State of New York] and the
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇. [To the extent they deem proper and to the extent specified
in such opinion, such counsel may rely, as to matters involving the
application of laws of the State of Delaware, upon the opinion of
___________ or other counsel of good standing whom they believe to be
reliable and who are satisfactory to the Representatives; provided that
(X) such reliance is expressly authorized by the opinion so relied upon
and a copy of each such opinion is delivered to the Representatives and
is, in form and substance, satisfactory to them and their counsel and (Y)
Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz states in their opinion that they
believe that they and the Underwriters are justified in relying thereon.
In addition, in giving the opinion contained in Section 9(b)(vii) above,
such counsel may rely on the paragraphs in the opinion of __________
corresponding to Sections 9(c)(i), (iii) and (v) below; provided that (x)
such reliance is expressly authorized by the opinion so relied upon and
(y) Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz states in its opinion that it
believes that it and the Underwriters are justified in relying thereon.
(c) You shall have received on the Closing Date an opinion of
_______, [General Counsel] for the Investment Adviser, dated the Closing
Date and addressed to you, as Representatives of the several Underwriters,
to the effect that:
(i) The Investment Adviser is a corporation duly
incorporated and validly existing in good standing under the laws of
the State of Delaware with full corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the 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, properties, net assets or results of operations of the
Investment Adviser;
(ii) The Investment Adviser is duly registered with the
Commission under the Advisers Act as an investment adviser and is
not prohibited by the Advisers Act, the 1940 Act or the Rules and
Regulations under such acts from acting for the Fund under the
Management Agreement as contemplated by the Prospectus (and any
amendment or supplement thereto);
(iii) The Investment Adviser has corporate power and authority
to enter into this Agreement and the Management Agreement and this
Agreement and the Management Agreement have been duly authorized,
executed and delivered by the Investment Adviser and the Management
Agreement is a valid, legal and binding agreement of the Investment
Adviser, enforceable against the Investment Adviser in accordance
with its terms, except as enforcement of rights to indemnity and
contribution may be limited by Federal or state securities laws or
principles of public policy and subject to the qualification that
the enforceability of the Investment Adviser's obligations
thereunder may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights
generally and by general equitable principles;
24
(iv) The Management Agreement complies in all material
respects with all applicable provisions of the Advisers Act, the
1940 Act and the Advisers Act Rules and Regulations and the 1940 Act
Rules and Regulations;
(v) Neither the execution and delivery by the Investment
Adviser of this Agreement or the Management Agreement nor the
consummation by the Investment Adviser of the transactions
contemplated hereunder or thereunder constitutes or will constitute
a breach of or a default under the Certificate of Incorporation or
By-Laws of the Investment Adviser or any material agreement,
indenture, lease or other instrument to which the Investment Adviser
is a party or by which it or any of its properties is bound that is
known to such counsel after reasonable inquiry, or will result in
the creation or imposition of any material lien, charge or
encumbrance upon any property or assets of the Investment Adviser,
nor will any such action result in any violation of any existing
material law, regulation, ruling (assuming compliance with all
applicable state securities and Blue Sky laws), judgment,
injunction, order or decree known to such counsel after reasonable
inquiry, applicable to the Fund or any of its properties;
(vi) The description of the Investment Adviser and its
business in the Prospectus (and any amendment or supplement thereto)
complies in all material respects with all requirements of the 1933
Act, the 1940 Act and the Rules and Regulations;
(vii) To the best knowledge of such counsel after reasonable
inquiry, other than as described or contemplated in the Prospectus
(and any amendment or supplement thereto), there are no actions,
suits or other legal or governmental proceedings pending or
threatened against the Investment Adviser or to which the Investment
Adviser or any of its property is subject which are required to be
described in the Registration Statement or Prospectus (or any
amendment or supplement to either of them);
(viii) The Investment Adviser owns, possesses or has obtained
and currently maintains all governmental licenses, permits,
consents, orders, approvals and other authorizations as are
necessary for the Investment Adviser to carry on its business as
contemplated in the Prospectus (and any amendment or supplement
thereto); and
(ix) No material consent, approval, authorization or order
of or registration or filing with any court, regulatory body,
administrative or other governmental body, agency or official is
required on the part of the Investment Adviser for the performance
of this Agreement or the Management Agreement by the Investment
Adviser or for the consummation by the Investment Adviser of the
transactions contemplated hereby or thereby.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in its opinion, to determine
independently and does not assume any
25
responsibility for, the accuracy or completeness of the statements in the
Registration Statement, such counsel has participated in the preparation
of the Registration Statement and the Prospectus, including review and
discussion of the contents thereof and nothing has come to its attention
that has caused it to believe that the Registration Statement at the time
it became effective or the Prospectus, as of its date and as of the
Closing Date or the Option Closing Date, as the case may be, 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
(in the case of a prospectus, in light of the circumstances under which
they were made) not misleading or that any amendment or supplement to the
Prospectus, as of the Closing Date or the Option Closing Date, contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements and the notes thereto and the schedules and other
financial and statistical data included in the Registration Statement or
the Prospectus).
In rendering such opinion, counsel may limit such opinion to matters
involving the application of the laws of the State of Illinois, the
Delaware General Corporation Law statute and the laws of the United States
and may rely upon an opinion or opinions, each dated the Closing Date, of
other counsel retained by the Investment Adviser as to laws of any
jurisdiction other than the United States, the State of Illinois and the
Delaware General Corporation Law statute, provided that (X) each such
local counsel is acceptable to the Representatives, (Y) such reliance is
expressly authorized by each opinion so relied upon and a copy of each
such opinion is delivered to the Representatives and is, in form and
substance satisfactory to them and their counsel and (Z) counsel shall
state in his view that he believes that he and the Underwriters are
justified in relying thereon.
(d) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, with respect to such matters as the Underwriters may require
and the Fund, the Investment Adviser and their respective counsels shall
have furnished to such counsel such documents as they may request for the
purpose of enabling them to pass upon such matters.
(e) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and
the Closing Date from Ernst & Young LLP, independent certified public
accountants, substantially in the forms heretofore approved by you.
(f) (i) No order suspending the effectiveness of the Registration
Statement or prohibiting or suspending the use of the Prospectus (or any
amendment or supplement thereto) or any Prepricing Prospectus or any sales
material shall have been issued and no proceedings for such purpose or for
the purpose of commencing an enforcement action against the Fund, the
Investment Adviser or, with respect to the transactions contemplated by
the Prospectus (or any amendment or supplement thereto) and this
Agreement, any Underwriter, may be pending before or, to the knowledge of
the Fund, the Investment
26
Adviser or any Underwriter or in the reasonable view of counsel to the
Underwriters, shall be threatened or contemplated by the Commission at or
prior to the Closing Date and that any request for additional information
on the part of the Commission (to be included in the Registration
Statement, the Prospectus or otherwise) be complied with to the
satisfaction of the Representatives, (ii) there shall not have been any
change in the capital stock of the Fund nor any material increase in debt
of the Fund from that set forth in the Prospectus (and any amendment or
supplement thereto) and the Fund shall not have sustained any material
liabilities or obligations, direct or contingent, other than those
reflected in the Prospectus (and any amendment or supplement thereto);
(iii) since the date of the Prospectus there shall not have been any
material, adverse change in the condition (financial or other), business,
prospects, properties, net assets or results of operations of the Fund or
the Investment Adviser; (iv) the Fund and the Investment Adviser must not
have sustained any material loss or interference with its business from
any court or from legislative or other governmental action, order or
decree or from any other occurrence not described in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them); and (v) all of the representations and warranties of the Fund and
the Investment Adviser contained in this Agreement shall be true and
correct on and as of the date hereof and as of the Closing Date as if made
on and as of the Closing Date.
(g) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change or any development involving a
prospective change in or affecting the condition (financial or other),
business, prospects, properties, net assets or results of operations of
the Fund or the Investment Adviser not contemplated by the Prospectus (and
any amendment or supplement thereto), which in your opinion, as
Representatives of the several Underwriters, would materially, adversely
affect the market for the Shares or (ii) any event or development relating
to or involving the Fund, the Investment Adviser or any officer or trustee
or director of the Fund or the Investment Adviser which makes any
statement of a material fact made in the Prospectus (or any amendment or
supplement thereto) untrue or which, in the opinion of the Fund and its
counsel or the Underwriters and their counsel, requires the making of any
addition to or change in the Prospectus (or any amendment or supplement
thereto) in order to state a material fact required by the 1933 Act, the
1940 Act, the Rules and Regulations or any other law to be stated therein
or necessary in order to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading, if amending or supplementing the Prospectus (or any amendment
or supplement thereto) to reflect such event or development would, in your
opinion, as Representatives of the several Underwriters, materially,
adversely affect the market for the Shares.
(h) That neither the Fund nor the Investment Adviser shall have
failed at or prior to the Closing Date to have performed or complied with
any of the agreements herein contained and required to be performed or
complied with by them at or prior to the Closing Date.
(i) That you shall have received on the Closing Date a
certificate, dated such date, of the president, any managing director or
any vice president and of the controller,
27
treasurer or assistant treasurer of each of the Fund and the Investment
Adviser certifying that (i) the signers have carefully examined the
Registration Statement, the Prospectus (and any amendments or supplements
to either of them) and this Agreement, (ii) the representations and
warranties of the Fund (with respect to the certificates from such Fund
officers) and the representations and warranties of the Investment Adviser
(with respect to the certificates from such officers of the Investment
Adviser) in this Agreement are true and correct on and as of the date of
the certificate as if made on such date, (iii) since the date of the
Prospectus (and any amendment or supplement thereto) there has not been
any material, adverse change in the condition (financial or other),
business, prospects (other than as a result of a change in the financial
markets generally), properties, net assets or results of operations of the
Fund (with respect to the certificates from such Fund officers) or the
Investment Adviser (with respect to the certificates from such officers of
the Investment Adviser), (iv) to the knowledge of such officers after
reasonable investigation, no order suspending the effectiveness of the
Registration Statement or prohibiting the sale of any of the Shares or
having a material, adverse effect on the Fund (with respect to the
certificates from such Fund officers) or the Investment Adviser (with
respect to the certificates from such officers of the Investment Adviser)
has been issued and no proceedings for any such purpose are pending before
or threatened by the Commission or any court or other regulatory body, the
NASD, any state securities commission, any national securities exchange,
any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official, (v) each of the
Fund (with respect to certificates from such Fund officers) and the
Investment Adviser (with respect to certificates from such officers of the
Investment Adviser) has performed and complied with all agreements that
this Agreement requires it to perform by such Closing Date, (vi) neither
the Fund (with respect to the certificate from such officers of the Fund)
nor the Investment Adviser (with respect to the certificate from such
officers of the Investment Adviser) has sustained any material loss or
interference with its business from any court or from legislative or other
governmental action, order or decree or from any other occurrence not
described in the Registration Statement and the Prospectus and any
amendment or supplement to either of them and (vii) with respect to the
certificate from such officers of the Fund, there has not been any change
in the capital stock of the Fund nor any material increase in the debt of
the Fund from that set forth in the Prospectus (and any amendment or
supplement thereto) and the Fund has not sustained any material
liabilities or obligations, direct or contingent, other than those
reflected in the Prospectus (and any amendment or supplement thereto).
(j) That the Fund and the Investment Adviser shall have furnished
to you such further certificates, documents and opinions of counsel as you
shall reasonably request (including certificates of officers of the Fund
and the Investment Adviser).
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are satisfactory in
form and substance to you and your counsel acting in good faith.
Any certificate or document signed by any officer of the Fund or the
Investment Adviser and delivered to you, as Representatives of the
Underwriters or to Underwriters'
28
counsel, shall be deemed a representation and warranty by the Fund or the
Investment Adviser to each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to (i) the accuracy of and compliance with
the representations and warranties of the Fund and the Investment Adviser
contained herein on and as of the Option Closing Date as though made on
any Option Closing Date, (ii) satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 9 except that, if any
Option Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in paragraphs (b), (c), (d), (e), (i),
(j) and this paragraph shall be dated the Option Closing Date in question
and the opinions and letters called for by paragraphs (b), (c), (d) and
(e) shall be revised to reflect the sale of Additional Shares and (iii)
the absence of circumstances on or prior to the Option Closing Date which
would permit termination of this Agreement pursuant to Section 11 hereof
if they existed on or prior to the Closing Date.
10. Effective Date of Agreement. This Agreement shall become effective:
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
Registration Statement or a post-effective amendment thereto to be declared
effective before the offering of the Shares may commence, when notification of
the effectiveness of the Registration Statement or such post-effective amendment
has been released by the Commission. Until such time as this Agreement shall
have become effective, it may be terminated by the Fund by notifying you or by
you, as Representatives of the several Underwriters, by notifying the Fund.
If any one or more of the Underwriters shall fail or refuse to purchase
Firm Shares which it or they have agreed to purchase hereunder and the aggregate
number of Firm Shares which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Firm Shares, each non-defaulting Underwriter shall be obligated,
severally, in the proportion which the aggregate number of Firm Shares set forth
opposite its name in Schedule I hereto bears to the aggregate number of Firm
Shares set forth opposite the names of all non-defaulting Underwriters or in
such other proportion as you may specify in accordance with the ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Master Agreement Among Underwriters, to purchase Firm Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase.
If any Underwriter or Underwriters shall fail or refuse to purchase Firm Shares
and the aggregate number of Firm Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Firm Shares and
arrangements satisfactory to you and the Fund for the purchase of such Firm
Shares by one or more non-defaulting Underwriters or other party or parties
approved by you and the Fund are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Fund. In any such case which does not result
in termination of this Agreement, either you or the Fund shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any such default of any such Underwriter under this
Agreement. The term
29
"Underwriter" as used in this Agreement includes, for all purposes of this
Agreement, any party not listed in Schedule I hereto who, with your approval and
the approval of the Fund, purchases Firm Shares which a defaulting Underwriter
agreed, but failed or refused, to purchase.
Any notice under this Section 10 may be made by telegram, facsimile or
telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of the
Underwriters to the Fund or the Investment Adviser, by notice given to the Fund
or the Investment Adviser prior to delivery of and payment for the Firm Shares
and any Additional Shares, as the case may be, if at any time prior to such time
(i) trading in the Fund's Common Shares shall have been suspended by the
Commission or the NYSE or trading in securities generally on the NYSE shall have
been suspended or limited or minimum prices for trading in securities generally
shall have been established on the NYSE, (ii) a commercial banking moratorium
shall have been declared by either federal or New York state authorities, or
(iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war, or other
calamity or crisis the effect of which on financial markets in the United States
is such as to make it, in your sole judgment, impracticable or inadvisable to
proceed with the offering or delivery of the Shares as contemplated by the
Prospectus (exclusive of any supplement thereto). Notice of such termination may
be given to the Fund or the Investment Adviser by telegram, facsimile or
telephone and shall be subsequently confirmed by letter.
12. Expenses. The Fund agrees to pay the following costs and expenses and
all other costs and expenses incident to the performance by the Fund of its
obligations hereunder: (a) the preparation, printing or reproduction, filing
(including, without limitation, the filing fees prescribed by the 1933 Act, the
1940 Act and the Rules and Regulations) and distribution of the Registration
Statement (including exhibits thereto), the Prospectus, each Prepricing
Prospectus and the 1940 Act Notification and all amendments or supplements to
any of them, (b) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of such copies of
the Registration Statement, the Prospectus, each Prepricing Prospectus, any
sales material and all amendments or supplements to any of them as may be
reasonably requested for use in connection with the offering and sale of the
Shares, (c) the preparation, printing, authentication, issuance and delivery of
certificates for the Shares, including any stamp taxes and transfer agent and
registrar fees payable in connection with the original issuance and sale of such
Shares, (d) the registrations or qualifications of the Shares for offer and sale
under the securities or Blue Sky laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriters relating to the preparation, printing or
reproduction and delivery of the preliminary and supplemental Blue Sky Memoranda
and such registration and qualification), (e) the fees and expenses of the
Fund's independent accountants, counsel for the Fund and of the transfer agent,
(f) the expenses of delivery to the Underwriters and dealers (including postage,
air freight and the cost of counting and packaging) of copies of the Prospectus,
the Prepricing Prospectus, any sales material and all amendments or supplements
to the Prospectus as may be requested for use in connection with the offering
and sale of the Shares, (g) the printing (or reproduction) and delivery of this
Agreement, any dealer agreements, the preliminary and supplemental Blue Sky
30
Memoranda and all other company-authorized agreements or other documents printed
(or reproduced) and delivered in connection with the offering of the Shares, (h)
the filing fees and the fees and expenses of counsel for the Underwriters in
connection with any filings required to be made with the NASD and incurred with
respect to the review of the offering of the Shares by the NASD, (i) the
registration of the Shares under the 1934 Act and the listing of the Shares on
the NYSE and (j) an amount equal to $.005 per Share for each Share sold pursuant
to this Agreement, payable no later than 45 days from the date of this Agreement
to the Underwriters in partial reimbursement of their expenses (but not
including reimbursement for the cost of one tombstone advertisement in a
newspaper that is one-quarter of a newspaper page or less in size) in connection
with the offering. To the extent that the foregoing costs and expenses
incidental to the performance of the obligations of the Fund under this
Agreement exceed $0.03 per Share, the Investment Adviser will pay all such costs
and expenses.
Notwithstanding the foregoing, in the event that the sale of the Firm
Shares is not consummated pursuant to Section 2 hereof, the Investment Adviser
will pay the costs and expenses of the Fund set forth above in this Section 12
(a) through (i), and reimbursements of Underwriter expenses in connection with
the offering shall be made in accordance with Section 5(k) hereof.
13. Information Furnished by the Underwriters. The names of the
underwriters and numbers of Shares listed opposite such names in the first
paragraph under the caption "Underwriting" in the Prospectus, as well as, under
the same caption, the last sentence of the second paragraph, the first sentence
of the tenth paragraph, the first sentence of the twelfth paragraph and the
seventeenth paragraph constitute the only information relating to any
Underwriter furnished to the Fund in writing by or on behalf of the Underwriters
through you as such information is referred to herein, expressly for use in the
Prospectus.
14. Miscellaneous. Except as otherwise provided in Sections 5, 10 and 11
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (a) if to the Fund or the Investment Adviser, c/o
_________ at _________, Attention: ________, or (b) if to you, as
Representatives of the Underwriters, at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Manager,
Investment Banking Division.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Fund, the Investment Adviser, their trustees, directors and
officers and the other controlling persons referred to in Section 8 hereof and
their respective successors and assigns to the extent provided herein and no
other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" or the term "successors and assigns" as
used in this Agreement shall include a purchaser from any Underwriter of any of
the Shares in his status as such purchaser.
15. Applicable Law; Counterparts. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
31
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
32
Please confirm that the foregoing correctly sets forth the agreement among
the Fund and the Investment Adviser and the several Underwriters.
Very truly yours,
CALAMOS CONVERTIBLE AND HIGH INCOME FUND
By: ___________________________
Name:
Title:
CALAMOS ASSET MANAGEMENT, INC.
By: ___________________________
Name:
Title:
33
Confirmed as of the date
first above written on
behalf of themselves and
the other several Underwriters
named in Schedule I hereto.
By: CITIGROUP
AS REPRESENTATIVES OF THE SEVERAL UNDERWRITERS
By: CITIGROUP GLOBAL MARKETS INC.
By: _____________________________
Name:
Title:
34
SCHEDULE I
NUMBER OF
NAME OF UNDERWRITER COMMON SHARES
------------------- -------------
Citigroup Global Markets Inc....................................
