EXHIBIT h.1
NUVEEN FLOATING RATE INCOME FUND
FUNDPREFERRED SHARES
4,000 Shares, Series M
4,000 Shares, Series T
4,000 Shares, Series W
4,000 Shares, Series F
Liquidation Preference $25,000 Per Share
UNDERWRITING AGREEMENT
New York, New York
May [__], 2004
Citigroup Global Markets Inc.
Nuveen Investments, LLC
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
Wachovia Capital Markets, LLC
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Nuveen Floating Rate Income Fund, a Massachusetts business
trust (the "Fund") proposes to sell to you (the "Underwriters"), upon the terms
and conditions set forth herein, 4,000 FundPreferred Shares, Series 11, 4,000
FundPreferred Shares, Series T, 4,000 FundPreferred Shares, Series W and 4,000
FundPreferred Shares, Series F each with a par value of $0.01 per share and a
liquidation preference of $25,000 per share (the "Securities"). The Securities
will be authorized by the Fund's Declaration of Trust and the Statement
Establishing and Fixing the Rights and Preferences of FundPreferred Shares (the
"Statement"), and subject to the terms and conditions of the Statement in the
form thereof filed as an appendix to the statement of additional information of
the registration statement referred to in Section 1(a) of this Underwriting
Agreement (the "Agreement") and filed with the Secretary of the Commonwealth of
the Commonwealth of Massachusetts. Nuveen Institutional Advisory Corp., a
Delaware corporation (the "Investment Adviser"), is the Fund's investment
adviser and Symphony Asset Management, LLC, a California limited liability
company ("Symphony" and, together with the Investment Adviser, each an "Adviser"
and collectively the "Advisers") is the subadviser to the Fund.
The Fund and the Advisers wish to confirm as follows their
agreements with the Underwriters in connection with the several purchases of the
Securities by the Underwriters.
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The Fund has entered into an Investment Management Agreement
with the Investment Adviser dated as of February 24, 2004, a Custodian Agreement
with State Street Bank and Trust Company dated as of August 19, 2002, effective
as of March 30, 2004, and a Shareholder Transfer Agency and Service Agreement
with State Street Bank and Trust Company dated as of October 7, 2002, effective
as of March 30, 2004, and will enter into an Auction Agency Request and
Acceptance letter with The Bank of New York to be dated the Closing Date,
incorporating the Nuveen Auction Agency Agreement Basic Term For Acting as
Auction Agent dated August 22, 2002, and such agreements are herein referred to
as the "Management Agreement," the "Custodian Agreement," the "Transfer Agency
Agreement" and the "Auction Agency Agreement," respectively. Collectively, the
Management Agreement, the Custodian Agreement, the Transfer Agency Agreement and
the Auction Agency Agreement are herein referred to as the "Fund Agreements".
The Investment Adviser has entered into an investment sub-advisory agreement
with Symphony dated as of February 24, 2004 and such agreement is herein
referred to as the "Sub-Advisory Agreement".
1. Representations and Warranties of the Fund and the
Advisers. The Fund, the Investment Adviser and Symphony, jointly and severally,
represent and warrant to, and agree with, each Underwriter as set forth below in
this Section 1.
(a) The Fund has prepared and filed with the Commission a
registration statement (file numbers 333-114726 and 811-21494) on Form
N-2, including a related preliminary prospectus (including the
statement of additional information incorporated by reference therein),
for registration under the Act and the 1940 Act of the offering and
sale of the Securities. The Fund may have filed one or more amendments
thereto, including a related preliminary prospectus (including the
statement of additional information incorporated by reference therein),
each of which has previously been furnished to you. The Fund will next
file with the Commission one of the following: either (1) prior to the
Effective Date of such registration statement, a further amendment to
such registration statement (including the form of final prospectus
(including the statement of additional information incorporated by
reference therein)) or (2) after the Effective Date of such
registration statement, a final prospectus (including the statement of
additional information incorporated by reference therein) in accordance
with Rules 430A and 497. In the case of clause (2), the Fund has
included in such registration statement, as amended at the Effective
Date, all information (other than Rule 430A Information) required by
the Act and the 1940 Act and the Rules and Regulations to be included
in such registration statement and the Prospectus. As filed, such
amendment and form of final prospectus (including the statement of
additional information incorporated by reference therein) (in the case
of clause (1) above), or such final prospectus (including the statement
of additional information incorporated by reference therein) (in the
case of clause (2) above), shall contain all Rule 430A Information,
together with all other such required information, and, except to the
extent the Underwriters shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other
changes (beyond that contained in the latest Preliminary Prospectus) as
the Fund has advised you, prior to the Execution Time, will be included
or made therein.
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(b) Each Preliminary 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 Act, the 1940 Act and the Rules and
Regulations.
(c) 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 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 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 the Prospectus, in the
light of the circumstances under which they were made) not misleading;
except that this representation and warranty does not apply to
statements in or omissions from the Registration Statement 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.
(d) All the outstanding common shares of beneficial interests,
par value $0.01 per share, of the Fund (the "Common Shares") have been
duly authorized and validly issued, are fully paid and nonassessable,
except that, as set forth in the Registration Statement, shareholders
of a Massachusetts business trust may under certain circumstances be
held personally liable for its obligations, and are free of any
preemptive or similar rights that entitle or will entitle any person to
acquire any securities upon issuance thereof by the Fund, except as
stated above; the Securities 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, except that, as set forth in the Registration
Statement, shareholders of a Massachusetts business trust may under
certain circumstances be held personally liable for its obligations,
and are free of any preemptive or similar rights that entitle or will
entitle any person to acquire any securities upon issuance thereof by
the Fund, except as stated above, and the shares of beneficial interest
of the Fund, including the Securities and the Common Shares, conforms
to the description thereof in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them).
(e) The Fund has been duly formed and is validly existing in
good standing as a business trust under the laws of The Commonwealth of
Massachusetts, 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
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(financial or other), business, properties, net
assets or results of operations of the Fund. The Fund has no
subsidiaries.
(f) 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, whether or not arising
from transactions in the ordinary course of business, 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 Act, the 1940 Act or the Rules and Regulations.
(g) 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 Act, the 1940 Act or
the Rules and Regulations.
(h) The Fund is not in violation of the Statement, its
Declaration of Trust, including any amendments thereto, or By-Laws or
in material violation of any material law, ordinance, administrative or
governmental rule or regulation applicable to the Fund, including,
without limitation, the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act
of 2002 and the rules and regulations promulgated in connection
therewith, or of any material decree of the Commission, the National
Association of Securities Dealers (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.
(i) Neither the issuance and sale of the Securities, 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 (i) 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 filing the Statement
with the Secretary of State of the Commonwealth of Massachusetts) or
conflicts or will conflict with or constitutes or will constitute a
breach of the Declaration of Trust, including any amendments thereto,
or By-Laws of the Fund or (ii) 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
5
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.
(j) 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, (i)
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, and (ii) 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).
(k) The accountants, ▇▇▇▇▇ & Young LLP, who have audited or
shall audit at or prior to the Closing Date the Statement of Assets and
Liabilities and the related Statement of Operations 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 Act, the 1940 Act and the Rules and
Regulations.
(l) 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.
(m) The Fund, subject to the Registration Statement having
been declared effective and, except for the filing of the Prospectus or
a certification under Rule 497 under the Act Rules and Regulations, has
taken all required action under the Act, the 1940 Act and the Rules and
Regulations to make the public offering and consummate the sale of the
Securities as contemplated by this Agreement.
(n) 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 the Fund Agreements 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.
6
(o) 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 shares of beneficial
interest or material increase in the short-term debt or long-term debt
of the Fund.
(p) 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 Securities, will not distribute to the public in either printed
or electronic form any offering material in connection with the
offering and sale of the Securities other than the Registration
Statement, the Preliminary Prospectuses included in Pre-Effective
Amendment No. 1 to the Registration Statement and the Prospectus.
(q) 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.
(r) 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 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.
(s) 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.
(t) 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
7
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 or the Securities 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.
(u) 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).
(v) The Fund has filed in a timely manner each document or
report required to be filed by it pursuant to the 1940 Act, the 1940
Act Rules and Regulations, the Exchange Act and the rules and
regulations of the Commission promulgated thereunder; each such
document or report at the time it was filed conformed to the
requirements of the 1940 Act, the 1940 Act Rules and Regulations and
the Exchange Act and the rules and regulations of the Commission
promulgated thereunder, as the case may be, and none of such documents
or reports contained an untrue statement of any material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading.
(w) 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 Advisers for use in connection with the offering and
sale of the Securities (collectively, "sales material") complied and
comply in all material respects with the applicable requirements of the
Act, the 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.
(x) 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").
(y) No holder of any security of the Fund has any right to
require registration of the Securities or any other security of the
Fund because of the filing of the registration statement or
consummation of the transactions contemplated by this Agreement.
8
(z) The Fund has filed all tax returns required to be filed
and the Fund is not in material default in the payment of any taxes
which were shown as payable on said returns or any assessments with
respect thereto.
(aa) The Fund intends to direct the investment of the proceeds
of the offering of the Securities in such a manner as to comply with
the requirements of Subchapter M of the Code.
(bb) The Fund's directors and officers errors and omissions
insurance policy and its fidelity bond required by Rule 17g-1 of the
1940 Act Rules and Regulations are in full force and effect; the Fund
is in compliance with the terms of such policy and fidelity bond in all
material respects; and there are no claims by the Fund under any such
policy or fidelity bond as to which any insurance company is denying
liability or defending under a reservation of rights clause; the Fund
has not been refused any insurance coverage sought or applied for; and
the Fund has no reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Fund, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement
thereto).
(cc) Except as disclosed in the Prospectus, no trustee of the
Fund is an "interested person" (as defined in the 1940 Act) of the Fund
or an "affiliated person" (as defined in the 1940 Act) of any
Underwriter listed in Schedule I hereto.
(dd) The form of certificate for each of the FundPreferred
Shares, Series [_], Series [_] and Series [_] is in due and proper form
and complies with the requirements of all applicable laws.
(ee) The Common Shares are duly listed on the New York Stock
Exchange ("NYSE").
2. Representations, Warranties and Agreements of the Advisers.
Each of the Investment Adviser and Symphony, severally as to itself only and not
jointly or as to any other party, represents and warrants to each Underwriter as
follows:
(a) Such Adviser is a corporation or limited liability
company, as the case may be, duly organized and validly existing in
good standing under the laws of its jurisdiction of incorporation or
formation, with full corporate or company power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus (and any
amendment or supplement to either of them) and is duly registered and
qualified to conduct 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 such Adviser.
9
(b) Such Adviser is duly registered with the Commission 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 Fund
Agreements to which it is a party for the Fund or the Sub-Advisory
Agreement as contemplated by the Registration Statement and the
Prospectus (or any amendment or supplement thereto).
(c) Such Adviser has full power and authority to enter into
this Agreement, the Fund Agreements to which it is a party and the
Sub-Advisory Agreement, the execution and delivery of, and the
performance by such Adviser of its obligations under, this Agreement,
the Fund Agreements to which it is a party and the Sub-Advisory
Agreement have been duly and validly authorized by such Adviser; and
this Agreement, the Fund Agreements to which it is a party and the
Sub-Advisory Agreement have been duly executed and delivered by such
Adviser and constitute the valid and legally binding agreements of such
Adviser, enforceable against such 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 such 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) Such Adviser has the financial resources available to it
necessary for the performance of its services and obligations as
contemplated in the Registration Statement and the Prospectus (or any
amendment or supplement thereto) and under this Agreement and the Fund
Agreements to which it is a party and the Sub-Advisory Agreement.
(e) Such Adviser is not in violation of its certificate or
articles of incorporation, by-laws, certificate or articles of
formation or organization, limited liability company agreement or other
organizational documents, as the case may be, or in violation of the
applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules
and regulations promulgated in connection therewith to which it is
subject, in default under any material agreement, indenture or
instrument or in breach or violation of any judgment, decree, order,
rule or regulation of any court or governmental or self-regulatory
agency or body except where such violation or breach would not have a
material, adverse effect on the condition (financial or other),
business, prospects, properties, net assets or results of operations of
such Adviser or on the ability of the such Adviser to perform its
obligations under this Agreement, the Fund Agreements to which it is a
party or the Sub-Advisory Agreement.
(f) The description of such Adviser and its business, and the
statements attributable to such 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 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.
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(g) There are no legal or governmental proceedings pending or,
to the knowledge of such Adviser, threatened against such Adviser or to
which any of the properties of such Adviser 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
such Adviser or that reasonably should have a material, adverse effect
on the ability of such Adviser to fulfill its obligations hereunder or
under the Fund Agreements to which it is a party or under the
Sub-Advisory Agreement.
(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, (i)
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 such Adviser, whether or not arising from the
ordinary course of business and (ii) there have been no transactions
entered into by such Adviser which are material to such Adviser other
than those in the ordinary course of its business as described in the
Prospectus.
(i) Such 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; such 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 such Adviser under any such permit.
(j) This Agreement, the Fund Agreements to which such Adviser
is a party and the Sub-Advisory 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.
(k) Neither the execution, delivery or performance of this
Agreement or the Fund Agreements by such Adviser which is a party
thereto or the Sub-Advisory Agreement by such Adviser, nor the
consummation by such Adviser of the transactions contemplated hereby or
thereby (A) requires any consent, approval, authorization or other
order of or registration or filing with the Commission, the NASD, any
state securities commission, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official (except such
as may have been obtained or made prior to the date hereof) or
conflicts or will conflict with or constitutes or will constitute a
breach of or a default under, the certificate or articles of
incorporation, by-laws, certificate or articles of formation or
organization, limited liability company agreement or other
organizational documents of such 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 such 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
11
judgment, injunction, order or decree applicable to such 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
such 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 such Adviser is subject.
(l) Except as stated in this Agreement and in the Prospectus
(and in any amendment or supplement thereto), such 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 or the Securities in violation of federal securities
laws and such Adviser is not aware of any such action taken or to be
taken by any affiliates of such Adviser.
(m) In the event that the Fund or such 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, in each case under its
control or at its direction, such 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.
3. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the Fund
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Fund, at a purchase price of $[_____] per
share, the amount of FundPreferred Shares, Series M, Series T, Series W and
Series F set forth opposite such Underwriter's name in Schedule I hereto (or
such number of Securities increased as set forth in Section 10 hereof).
4. Delivery and Payment. (a) Delivery of and payment for the
Securities shall be made at the office of Citigroup Global Markets 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 May [__], 2004 (the "Closing Date") or at such time as
Citigroup Global Markets Inc. shall designate.
(b) Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through Citigroup Global Markets Inc. of the
purchase price thereof to or upon the order of the Company by wire transfer
payable in same-day funds to an account specified by the Company. Delivery of
the Securities shall be made through the facilities of The Depository Trust
Company unless Citigroup Global Markets Inc. shall otherwise instruct.
5. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public upon the
terms set forth in the Prospectus.
6. Agreements of the Fund and Certain Advisers. The Fund, the
Investment Adviser and Symphony, jointly and severally, agree with the several
Underwriters as follows:
12
(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 Act before the
offering of the Securities 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 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 Act Rules and Regulations,
the Fund will file a Prospectus including such information pursuant to
Rule 497(h) of the 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
Securities 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 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 Securities 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 or (ii) when the Prospectus has been timely filed
pursuant to Rule 497(c) or Rule 497(h) of the Act Rules and Regulations
or the certification permitted pursuant to Rule 497(j) of the 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 Preliminary 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 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 Preliminary Prospectus or
any sales material (as defined above), of any notice pursuant to
Section 8(e) of the 1940 Act, of the suspension of qualification of the
Securities 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 Advisers, any affiliate of the Fund
or the Advisers or any representative or attorney of the Fund or the
Advisers 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 Preliminary Prospectus, any sales material (as defined
above) (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
Advisers or of the happening of any event which
13
makes any statement of a material fact made in the Registration
Statement, the Prospectus, any Preliminary Prospectus or any sales
material (as defined above) (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
Preliminary Prospectus or any sales materials (as defined above) (or
any amendment or supplement to any of the foregoing) in order to state
a material fact required by the 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 the 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 Preliminary Prospectus or any sales material (as
defined above) (or any amendment or supplement to any of the foregoing)
to comply with the 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 Preliminary Prospectus or any sales material (as
defined above) (or any amendment or supplement to any of the foregoing)
or suspending the qualification of the Securities 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 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 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 Preliminary Prospectus or any sales material (as
defined above) (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 Exchange Act, without delivering a copy of such
information, documents or reports to you 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 Preliminary
Prospectus. The Fund consents to the use, in accordance with the
provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Securities are offered by the several
Underwriters and by dealers, prior to the date of the Prospectus, of
each Preliminary Prospectus so furnished by the Fund.
14
(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
Act to be delivered in connection with sales of Securities 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 Act and with the securities or Blue Sky laws of the
jurisdictions in which the Securities are offered by the several
Underwriters and by all dealers to whom Securities may be sold, both in
connection with the offering or sale of the Securities and for such
period of time thereafter as the Prospectus is required by law to be
delivered in connection with sales of Securities 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 Act, the 1940 Act, the Rules and
Regulations or any other federal law, rule or regulation or any
securities or Blue Sky laws, rules or regulations, 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 and to the extent
consistent with applicable law, will promptly issue a press release
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 Securities 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 Securities, 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 Act and
Rule 158 of the 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.
15
(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) 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: (i) the preparation, printing or
reproduction, filing (including, without limitation, the filing fees
prescribed by the Act, the 1940 Act and the Rules and Regulations) and
distribution of the Registration Statement (including exhibits
thereto), the Prospectus, each Preliminary Prospectus and the 1940 Act
Notification and all amendments or supplements to any of them, (ii)
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 Preliminary 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 Securities, (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the
Securities, including any stamp taxes and transfer agent and registrar
fees payable in connection with the original issuance and sale of such
Securities, (iv) the registrations or qualifications of the Securities
for offer and sale under the securities or Blue Sky laws of the several
states as provided in Section 6(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), (v) the transportation and other
expenses incurred by or on behalf of Fund representatives in connection
with presentations to prospective purchasers of the Securities, (vi)
the fees and expenses of the Fund's independent accountants, counsel
for the Fund, the transfer agent and the auction agent, (vii) 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 Preliminary 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 Securities, (viii)
the printing (or reproduction) and delivery of this Agreement, any
dealer agreements, the preliminary and supplemental Blue Sky Memoranda
and all other company-authorized agreements or other documents printed
(or reproduced) and delivered in connection with the offering of the
Securities and (ix) the fees of any Rating Agencies. Notwithstanding
the foregoing, in the event that the sale of the Securities is not
consummated pursuant to Section 3 hereof, the Advisers will pay the
costs and expenses of the Fund set forth above in clauses (i) through
(x) of this Section 6(k), and reimbursements of Underwriter expenses in
connection with the offering shall be made in accordance with Section 8
hereof.
(l) The Fund will direct the investment of the net proceeds of
the offering of the Securities in such a manner as to comply with the
investment objectives, policies and restrictions of the Fund as
described in the Prospectus.
(m) The Fund will file the requisite copies of the Prospectus
with the Commission in a timely fashion pursuant to Rule 497(c) or Rule
497(h) of the Act Rules
16
and Regulations, whichever is applicable or, if applicable, will file
in a timely fashion the certification permitted by Rule 497(j) of the
Act Rules and Regulations and will advise you of the time and manner of
such filing.
(n) Except as provided in this Agreement, neither the Fund nor
the Advisers will sell, contract to sell or otherwise dispose of or
hedge, any senior securities (as defined in the 1940 Act) of the Fund
or any securities convertible into or exercisable or exchangeable for
senior securities of the Fund or grant any options or warrants to
purchase senior securities of the Fund, for a period of [180] days
after the date of the Prospectus, without the prior written consent of
Citigroup Global Markets Inc.
(o) Except as stated in this Agreement and in the Prospectus,
neither the Fund nor the Advisers 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 any securities issued by the Fund to
facilitate the sale or resale of the Securities.
(p) The Fund will use its reasonable best efforts to cause the
Securities, prior to the Closing Date, to be assigned a rating of `Aaa'
by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and `AAA' by Standard &
Poor's Corporation, a division of the McGraw Hill Companies ("S&P," and
together with Moody's, the "Rating Agencies").
7. Conditions to the Obligations of the Underwriters. The
several obligations of the Underwriters to purchase any Securities hereunder are
subject to the accuracy of and compliance with the representations, warranties
and agreements of and by the Fund and the Advisers 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; to the accuracy and completeness of all statements
made by the Fund, the Advisers or any of their officers in any certificate
delivered to the Underwriters 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
Securities 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 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 Advisers 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
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C., special counsel for the Fund
and the Investment Adviser, dated the Closing Date and addressed to
you, to the effect that:
17
(i) The Fund (A) has been formed and is validly
existing under the Fund's Declaration of Trust, including any
amendments thereto, and the laws of the Commonwealth of
Massachusetts as a voluntary association with transferable
shares of beneficial interest, commonly referred to as a
"Massachusetts business trust," (B) is in good standing with
the Secretary of the Commonwealth of the Commonwealth of
Massachusetts, and (C) has full power and authority as a
business trust, to own, lease and operate its properties and
to conduct its business, in each case as described in the
Registration Statement and the Prospectus (and any amendment
or supplement to either of them through the date of the
opinion);
(ii) The Securities have been duly authorized by the
Fund for issuance and sale to the Underwriters pursuant to
this Agreement and, when issued and delivered to the
Underwriters against payment therefor in accordance with the
terms of this Agreement, will be validly issued, fully paid
and nonassessable, except that, as set forth in the
Registration Statement, shareholders of a Massachusetts
business trust may under certain circumstances be held liable
for its obligations, and are free of any statutory preemptive
rights. Except as set forth in the Declaration of Trust, as
amended, and the Statement, as of the date hereof, there are
no restrictions upon the transfer of any Securities pursuant
to the Declaration of Trust, as amended, or By-Laws of the
Fund or, to the best knowledge of such counsel, any agreement
or other outstanding instrument to which the Fund is a party;
and the specimen share certificates comply as to form with all
requirements of Massachusetts law;
(iii) The description of the authorized Common Shares
of the Fund contained under the caption "Description of Common
Shares" in the Prospectus (or any amendment or supplement
thereto through the date of this opinion) conforms in all
material respects as to legal matters to the terms thereof
contained in the Fund's Declaration of Trust, as amended, and
Statement. The statements in the first two paragraphs under
the caption "Certain Provisions in the Declaration of Trust"
in the Prospectus, to the extent that they constitute
descriptions of Massachusetts law, are in summary form
accurate in all material respects. The description of the
Securities contained under the captions "Description of
FundPreferred Shares" and "The Auction" in the Prospectus (or
any amendment or supplement thereto through the date of this
opinion) conforms in all material respects as to legal matters
to the terms thereof contained in the Fund's Declaration of
Trust, as amended, and Statement;
(iv) All of the outstanding Common Shares of the Fund
have been duly authorized by the Fund and are validly issued,
fully paid and nonassessable, except that, as set forth in the
Registration Statement, shareholders of a Massachusetts
business trust may under certain circumstances be held liable
for its obligations, and are free of any statutory preemptive
rights;
(v) The Registration Statement is effective under the
Act and was filed under the 1940 Act; any required filing of
the Prospectus pursuant to Rule 497 of the Act Rules and
Regulations has been made within the time periods required by
18
Rule 497; no stop-order suspending the effectiveness of the
Registration Statement or order pursuant to Section 8(e) of
the 1940 Act has been issued and to the best of such counsel's
knowledge, no proceeding for any such purpose has been
instituted or is pending or threatened in writing by the
Commission;
(vi) The Fund's 1940 Act Notification, the
Registration Statement and the Prospectus and each amendment
or supplement to the Registration Statement and the Prospectus
as of their respective issue dates (except the financial
statements and other financial data contained therein, as to
which we express no opinion) complies as to form in all
material respects with the requirements of the Act, the 1940
Act and the Rules and Regulations;
(vii) The statements made in the Prospectus
(including the statement of additional information
incorporated by reference therein or any amendment or
supplement thereto through the date of this opinion) under the
captions "The Auction," "Description of FundPreferred Shares"
and "Additional Information Concerning Auctions for
FundPreferred Shares," insofar as they purport to summarize
the provisions of the Statement or other documents or
agreements specifically referred to therein, constitute
accurate summaries of the terms of the Statement, Declaration
of Trust or such other documents (including any amendments or
supplements thereto through the date of the opinion), in all
material respects;
(viii) The statements made in the Prospectus (or any
amendment or supplement thereto through the date of this
opinion) under the captions "Prospectus Summary -- Federal
Income Taxes" and "Federal Income Tax Matters," insofar as
they constitute matters of law or legal conclusions, have been
reviewed by such counsel and constitute accurate statements of
any such matters of law or legal conclusions, and fairly
present the information called for with respect thereto by
Form N-2, in all material respects;
(ix) There are no legal or governmental proceedings
pending or threatened in writing 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, but are not described therein as required;
(x) This Agreement and the Fund Agreements have each
been duly and validly authorized, executed and delivered by
the Fund, each complies with all applicable provisions of the
1940 Act and the 1940 Act Rules and Regulations and the
Advisers Act and the rules and regulations thereunder, and
each of the Fund Agreements constitutes the valid and binding
agreement of the Fund, enforceable against the Fund in
accordance with its terms;
(xi) The Fund is registered under the 1940 Act as a
closed-end diversified management investment company; the
provisions of the Declaration of Trust, Statement and By-Laws
of the Fund (including any amendments or supplements thereto
or restatements thereof through the date of the opinion) and
19
the investment policies and restrictions described in the
Prospectus (including any amendments or supplements thereto
through the date of the opinion) do not violate the
requirements of the 1940 Act in any material respect;
(xii) None of the issuance and sale of the Securities
by the Fund pursuant to this Agreement, the execution and
delivery of this Agreement or any of the Fund Agreements by
the Fund, or the performance by the Fund of its agreements
under this Agreement or any of the Fund Agreements (A)
requires any consent, approval, authorization or other order
of or registration or filing with, the Commission, the NASD,
or any national securities exchange or governmental body or
agency or, arbitrator or court of the United States of
America, State of Illinois or the Commonwealth of
Massachusetts (except (1) the absence of which, either
individually or in the aggregate, would not have a material,
adverse effect on the Fund; (2) such as may have been obtained
prior to the date hereof; and (3) such as may be required for
compliance with the NYSE or state securities or Blue Sky laws
of various jurisdictions in accordance with this Agreement) or
violates or will violate or constitutes or will constitute a
breach of any of the provisions of the Declaration of Trust,
Statement, By-Laws or other organizational documents of the
Fund (including any amendments or supplements thereto or
restatements thereof through the date of the opinion) or (B)
conflicts with, violates or will violate or constitutes or
will constitute a breach of, or a default under, any material
agreement, indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument known to such
counsel to which the Fund is party or by which it or any of
its properties may be bound, or violates any existing material
United States of America, State of Illinois or Commonwealth of
Massachusetts statute, law, regulation (assuming compliance
with all applicable state securities and Blue Sky laws), or
judgment, injunction, order or decree known to the Fund or
such counsel and 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 known to such counsel to which the Fund is a party
or by which it or any of its property or assets is bound. To
the best of such counsel's knowledge, the Fund is not subject
to any order of any court or of any arbitrator, governmental
authority or administrative agency of the United States of
America, the State of Illinois or the Commonwealth of
Massachusetts;
(xiii) No holder of any security of the Fund has any
right pursuant to any agreement known to such counsel to which
the Fund is a party to require registration of shares of
beneficial interest, the Securities or any other security of
the Fund because of the filing of the Registration Statement
or consummation of the transactions contemplated by this
Agreement; and
(xiv) To the best of such counsel's knowledge, there
are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the
Registration Statement or the Prospectus, or to be filed as an
exhibit to the
20
Registration Statement that are not described or filed as required by the
Act, the 1940 Act or the Rules and Regulations.
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 and the Prospectus (and any amendment
or supplement thereto), 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, 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 the 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, 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, or omitted from, the
Registration Statement or the Prospectus (or any amendment or supplement
thereto)).
In rendering such opinion, such counsel may limit such opinion to matters
involving the application of the laws of The State of Illinois, Commonwealth of
Massachusetts and the United States. 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 Commonwealth of Massachusetts, upon the opinion
of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP or other counsel of good standing whom they believe to
be reliable and who are satisfactory to the Underwriters; 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 Underwriters and is, in form and
substance, satisfactory to them and their counsel and (Y) ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇, P.C. states in their opinion that they believe that they and the
Underwriters are justified in relying thereon. References to the Prospectus in
this paragraph (b) shall also include any amendments or supplements thereto at
the Closing Date.
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Managing Director, Assistant Secretary and General Counsel for the
Investment Adviser, dated the Closing Date and addressed to you, 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 thereto) 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
21
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, the Advisers Act Rules and Regulations or
the Rules and Regulations from acting for the Fund under the Management
Agreement and the Sub-Advisory 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, the Management Agreement and the Sub-Advisory
Agreement and this Agreement, the Management Agreement and the Sub-Advisory
Agreement have been duly and validly authorized, executed and delivered by
the Investment Adviser and each of the Management Agreement and the
Sub-Advisory Agreement is a valid, legal and binding agreement of the
Investment Adviser, enforceable against the Investment Adviser in
accordance with its terms, 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;
(iv) Each of the Management Agreement and the Sub-Advisory 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, the Management Agreement or the Sub-Advisory 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 (including any amendments thereto or restatements thereof) 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 respective properties;
(vi) The description of the Investment Adviser and its business in the
Prospectus (and any amendment or supplement thereto) complies in all
material
22
respects with all requirements of the 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 thereto);
(viii) The Investment Adviser owns, possesses or has obtained and
currently maintains all material 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, the Management
Agreement or the Sub-Advisory 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 responsibility for, the accuracy or completeness of the
statements in the Registration Statement and the Prospectus (and any amendment
or supplement thereto), 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, 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 the
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, 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, or omitted from, the Registration Statement or
the Prospectus (or any amendment or supplement thereto)).
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
23
any jurisdiction other than the United States, or the State of Illinois and
other than the Delaware General Corporation Law statute, provided that (X) each
such local counsel is acceptable to the Underwriters, (Y) such reliance is
expressly authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Underwriters 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 ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Secretary and special counsel for Symphony, dated the Closing Date
and addressed to you, to the effect that:
(i) Symphony is a limited liability company duly formed and validly
existing in good standing under the laws of the State of California with
full limited liability company power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto). Symphony has the limited liability company power and authority to
enter into this Agreement and the Sub-Advisory Agreement;
(ii) Symphony 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 Symphony;
(iii) Symphony 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 promulgated by the
Commission under such acts from acting for the Fund under the Sub-Advisory
Agreement as contemplated by the Prospectus (and any amendment or
supplement thereto);
(iv) This Agreement and the Sub-Advisory Agreement have been duly
authorized, executed and delivered by Symphony and the Sub-Advisory
Agreement is a valid, legal and binding agreement of Symphony, enforceable
against Symphony in accordance with its terms, subject to the qualification
that the enforceability of Symphony'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;
(v) The Sub-Advisory 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;
(vi) Neither the execution and delivery by Symphony of this Agreement
or the Sub-Advisory Agreement nor the consummation by Symphony of the
transactions contemplated hereunder or thereunder constitutes or will
24
constitute a breach of or a default under the articles of organization or
limited liability company operating agreement of Symphony or any material
agreement, indenture, lease or other instrument to which Symphony 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 Symphony, 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
Symphony or any of its properties;
(vii) The description of Symphony and its business in the Prospectus
(and any amendment or supplement thereto) complies in all material respects
with all requirements of the Act, the 1940 Act and the Rules and
Regulations;
(viii) 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 Symphony or
to which Symphony or any of its property is subject that are required to be
described in the Registration Statement or Prospectus (or any amendment or
supplement thereto);
(ix) Symphony owns, possesses or has obtained and currently maintains
all governmental licenses, permits, consents, orders, approvals and other
authorizations as are necessary for Symphony to carry on its business as
contemplated in the Prospectus (and any amendment or supplement thereto);
and
(x) 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
Symphony for the performance of this Agreement or the Sub-Advisory
Agreement by Symphony or for the consummation by Symphony 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 responsibility for, the accuracy or completeness of the
statements in the Registration Statement and the Prospectus (and any amendment
or supplement thereto), 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, 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 the
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, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
25
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, or omitted from, the
Registration Statement or the Prospectus (or any amendment or supplement
thereto)).
In rendering such opinion, counsel may limit such opinion to matters
involving the application of the laws of the United States and may rely upon an
opinion or opinions, each dated the Closing Date, of other counsel retained by
Symphony, including but not limited to ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as to
laws of any jurisdiction other than the United States of America and the State
of Illinois, provided that (X) each such local counsel is acceptable to the
Underwriters, (Y) such reliance is expressly authorized by each opinion so
relied upon and a copy of each such opinion is delivered to the Underwriters and
is, in form and substance, satisfactory to them and their counsel and (Z)
counsel shall state in their view that they believe that they and the
Underwriters are justified in relying thereon.
(e) That you shall have received on the Closing Date, an opinion, dated the
Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters,
dated the Closing Date and addressed to you, with respect to the issuance and
sale of the Securities, the Registration Statement, the Prospectus (together
with any supplement thereto) and other related matters as the Underwriters may
require, and the Fund, the Advisers 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.
(f) That you shall have received letters addressed to you and dated the
date hereof and the Closing Date from Ernst & Young LLP, independent certified
public accountants for the Fund, substantially in the forms heretofore approved
by you.
(g) (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 Preliminary 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 Advisers 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 Advisers 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 Underwriters, (ii) there shall not have been any change
in the capital stock of the Fund nor any material increase in debt (other than
in the ordinary course of business) 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
26
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 Advisers; (iv) the Fund and the Advisers 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 thereto); and (v) all of the representations and
warranties of the Fund and the Advisers 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.
(h) 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 Advisers not
contemplated by the Prospectus (and any amendment or supplement thereto), which
in your opinion would materially and adversely affect the market for the
Securities or (ii) any event or development relating to or involving the Fund,
the Advisers or any officer or trustee or director of the Fund or the Advisers
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 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, materially and adversely
affect the market for the Securities.
(i) That neither the Fund nor the Advisers 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.
(j) 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, treasurer or assistant treasurer of each of the Fund, the
Investment Adviser and the Subadviser certifying that (i) the signers have
carefully examined the Registration Statement, the Prospectus (and any
amendments or supplements thereto) and this Agreement (with respect to the
certificates of such officers of the Fund, the Investment Adviser and Symphony),
(ii) the representations and warranties of the Fund (with respect to the
certificates from such Fund officers) and the representations of the Advisers
(with respect to the certificates from such officers of the Advisers) 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 Advisers (with respect to the certificates from such officers
of the Advisers), (iv)
27
with respect to the certificates from such Fund officers and the certificates
from such officers of the Investment Adviser and Symphony, 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 Securities or having a material, adverse effect on the Fund has been issued
and no proceedings for any such purpose are pending before or threatened by the
Commission or any court or other regulatory body, the NASD, any state securities
commission, any national securities exchange, any arbitrator 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 Advisers (with respect to certificates from such officers of
the Advisers) has performed and complied in all material respects 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 Advisers (with respect to the certificate from such officers of
the Advisers) 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 thereto 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).
(k) The Fund shall have furnished to you as soon as practicable from the
Closing Date a report showing compliance with the asset coverage requirements of
the 1940 Act and a FundPreferred Shares Basic Maintenance Certificate (as
defined in the Statement), each dated the Closing Date and in form and substance
satisfactory to you.
(l) The Fund shall have delivered and the Underwriters shall have received
evidence satisfactory to the Underwriters that each series of Securities is
rated `Aaa' by ▇▇▇▇▇'▇ and `AAA' by S&P, as of the Closing Date, and there shall
have not been given any notice of any intended or potential downgrading, or of
any review for a potential downgrading, in the rating accorded to the shares of
each series of Securities by any Rating Agency.
(m) That the Fund and the Advisers 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 Advisers).
(n) That the Fund shall have duly filed the Statement (including amendments
thereto, if any) with the Secretary of the Commonwealth of the Commonwealth of
Massachusetts.
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.
28
Any certificate or document signed by any officer of the Fund or the
Advisers and delivered to you or to Underwriters' counsel shall be deemed a
representation and warranty by such party to each Underwriter as to the
statements made therein.
8. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 7 hereof is not satisfied or because of
any refusal, inability or failure on the part of the Fund or the Advisers to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Fund will reimburse the
Underwriters severally through Citigroup Global Markets Inc. on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
9. Indemnification and Contribution. (a) The Fund, the Investment Adviser
and Symphony, jointly and severally, agree to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several (including reasonable costs of investigation), to
which they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the
Prospectus (including the statement of additional information incorporated by
reference therein), any Preliminary Prospectus, any sales material (or any
amendment or supplement to any of the foregoing), or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein (in the case of
the Prospectus, any Preliminary Prospectus or any sales material (or any
amendment or supplement to any of the foregoing), in light of the circumstances
under which they were made) not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Fund will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Fund by or on behalf
of any Underwriter specifically for inclusion therein; provided, further, that
the foregoing indemnity with respect to the Registration Statement, the
Prospectus or any Preliminary Prospectus (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 or liability purchased Securities,
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 or
liability was not sent or delivered to such person by or on behalf of such
Underwriter, if required by law to be so delivered to, at or prior to the
confirmation of the sale of such Securities to such person and such Prospectus,
amendments and supplements have been provided by the Fund to the Underwriters in
the requisite quantity and on a timely basis to permit proper delivery. This
indemnity agreement will be in addition to any liability which the Fund, the
Investment Adviser or Symphony may otherwise have.
29
(b) Each Underwriter severally and not jointly agrees to indemnify and hold
harmless the Fund and the Advisers, each of its directors, trustees, each of its
officers who signs the Registration Statement, and each person who controls the
Fund or the Advisers within the meaning of the Act or the Exchange Act, to the
same extent as the indemnity from the Fund, the Investment Adviser and Symphony
to each Underwriter as set forth in Section 9(a) hereof, but only with respect
to written information relating to such Underwriter furnished to the Fund by or
on behalf of such Underwriter specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. The Fund and
the Advisers acknowledge that the names of the underwriters and numbers of
Securities listed opposite such names in the first paragraph under the caption
"Underwriting" in the Prospectus, as well as, under the same caption, the ninth
paragraph, constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party.
(d) In the event that the indemnity provided in paragraph (a), (b) or (c)
of this Section 9 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then the Fund, the Advisers and the
Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the Fund,
the Advisers and one
30
or more of the Underwriters may be subject in such proportion as is appropriate
to reflect the relative benefits received by the Fund and the Advisers on the
one hand and by the Underwriters on the other from the offering of the
Securities; provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Fund, the Advisers and the
Underwriters severally shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the Fund
and the Advisers on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Fund and the Advisers shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses) received by the Fund and the Advisers,
and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Prospectus. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Fund or the Advisers on the one hand or
the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Fund, the Advisers and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
9 were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (f), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Fund or the Advisers within the meaning of either the Act or the Exchange
Act, each officer of the Fund and the Advisers who shall have signed the
Registration Statement and each director of the Fund and the Advisers shall have
the same rights to contribution as the Fund and the Advisers, subject in each
case to the applicable terms and conditions of this paragraph (f). The
Underwriters' obligations to contribute pursuant to this Section 9 are several
in proportion to the respective aggregate number of Securities set forth
opposite their names in Schedule I (or such numbers of Securities increased as
set forth in Section 10 hereof) and not joint.
(e) Any losses, claims, damages or liabilities for which an indemnified
party is entitled to indemnification or contribution under this Section 9 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 9 and the representations and
warranties of the Fund and the Advisers 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 Advisers or their shareholders, trustees, directors, managers,
members or officers or any person controlling the Fund or the Advisers (control
to be determined within the meaning of the Act or the Exchange Act), (ii)
acceptance of any Securities and payment therefor hereunder and (iii) any
31
termination of this Agreement. A successor to any Underwriter or to the Fund,
the Advisers or their shareholders, trustees, directors, managers, members or
officers or any person controlling any Underwriter, the Fund or the Advisers
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 9.
10. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the aggregate amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate amount of Securities set forth opposite the names of all the remaining
Underwriters or in such other proportion as you may specify in accordance with
the Citigroup Global Markets Inc. Master Agreement Among Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Fund. In the event of a default by any Underwriter as set forth in this
Section 10 which does not result in a termination of this Agreement, the Closing
Date shall be postponed for such period, not exceeding five Business Days, as
the Underwriters shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Fund and any
nondefaulting Underwriter for damages occasioned by its default hereunder. The
term "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 Securities which a defaulting Underwriter
agreed, but failed or refused, to purchase.
11. Termination. This Agreement shall be subject to termination in the
absolute discretion of Citigroup Global Markets Inc., without liability on the
part of the Underwriters to the Fund or the Advisers, by notice given to the
Fund or the Advisers prior to delivery of and payment for the Securities, 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 shall have
been established on the NYSE, (ii) a commercial banking moratorium shall have
been declared either by 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 is such as to make it, in the sole
judgment of Citigroup Global Markets Inc., impractical or inadvisable to proceed
with the offering or delivery of the Securities as contemplated by the
Prospectus (exclusive of any supplement thereto). Notice of such termination may
be given to the Fund or the Advisers by telegram, facsimile or telephone and
shall be subsequently confirmed by letter.
32
12. Representations and Indemnities to Survive. The provisions of Sections
8 and 9 hereof shall survive the termination or cancellation of this Agreement.
13. Miscellaneous. Except as otherwise provided in Sections 6, 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 Advisor, c/o
Nuveen Investments at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, (b) if to Symphony, at the offices of Symphony Asset
Management, LLC at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or (c) if to the Underwriters, at the office of Citigroup Global
Markets 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 Advisers, their trustees, directors and officers and
the other controlling persons referred to in Section 9 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 Securities
in his status as such purchaser.
A copy of the Declaration of Trust of the Fund (including any amendments
thereto) is on file with the Secretary of the Commonwealth of the Commonwealth
of Massachusetts. This Agreement has been executed on behalf of the Fund by the
vice-president of the Fund in such capacity and not individually, and the
obligations of the Fund under this Agreement are not binding upon such officer,
any of the trustees or the shareholders individually but are binding only upon
the assets and property of the Fund.
14. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
trustees, directors, employees, agents and controlling persons referred to in
Section 9 hereof, and no other person will have any right or obligation
hereunder.
15. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
16. Counterparts. This Agreement may be signed in one or more counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
17. Headings. The section headings used herein are for convenience only and
shall not affect the construction hereof.
18. Definitions. The terms which follow, when used in this Agreement, shall
have the meanings indicated.
"1940 Act" shall mean the Investment Company Act of 1940, as amended.
33
"1940 Act Rules and Regulations" shall mean the rules and regulations of
the Commission under the 1940 Act.
"1940 Act Notification" shall mean a notification of registration of the
Fund as an investment company under the 1940 Act on Form N-8A, as the 1940 Act
Notification may be amended from time to time.
"Act" shall mean the Securities Act of 1933, as amended.
"Act Rules and Regulations" shall mean the rules and regulations of the
Commission under the Act.
"Advisers Act" shall mean the Investment Advisers Act of 1940, as amended
"Advisers Act Rules and Regulations" shall mean the rules and regulations
adopted by the Commission under the Advisers Act
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus (including
the statement of additional information incorporated by reference therein)
referred to in paragraph 1(a) above and any preliminary prospectus (including
the statement of additional information incorporated by reference therein)
included in the Registration Statement at the Effective Date that omits Rule
430A Information.
"Prospectus" shall mean the prospectus and any amendment or supplement
thereto (including the statement of additional information incorporated by
reference therein) relating to the Securities that is first filed pursuant to
Rule 497 after the Execution Time or, if no filing pursuant to Rule 497 is
required, shall mean the form of final prospectus (including the statement of
additional information incorporated by reference therein) relating to the
Securities included in the Registration Statement at the Effective Date.
34
"Registration Statement" shall mean the registration statement referred to
in paragraph 1(a) above, including exhibits and financial statements, as amended
at the Execution Time (or, if not effective at the Execution Time, in the form
in which it shall become effective) and, in the event any post-effective
amendment thereto or any Rule 462(b) Registration Statement becomes effective
prior to the Closing Date, shall also mean such registration statement as so
amended or such Rule 462(b) Registration Statement, as the case may be. Such
term shall include any Rule 430A Information deemed to be included therein at
the Effective Date as provided by Rule 430A.
"Rule 430A" and "Rule 462" refer to such rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in Section 1(a)
hereof.
"Rule 497" refers to Rule 497(c) or 497(h) under the Act, as applicable.
"Rules and Regulations" shall mean, collectively, the Act Rules and
Regulations and the 1940 Act Rules and Regulations.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Fund,
the Advisers and the several Underwriters.
Very truly yours,
NUVEEN FLOATING RATE INCOME FUND
By:
---------------------------------------
Name:
Title:
NUVEEN INSTITUTIONAL ADVISORY CORP.
By:
---------------------------------------
Name:
Title:
SYMPHONY ASSET MANAGEMENT, LLC
By:
---------------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
By:
------------------------------------
Name:
Title:
For itself and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
NUMBER OF NUMBER OF NUMBER OF NUMBER
FUNDPREFERRED SHARES, FUNDPREFERRED SHARES, FUNDPREFERRED FUNDPREFERRED
UNDERWRITERS SERIES [_] SERIES [_] SHARES, SERIES [_] SHARES, SERIES [_]
------------ ---------- ---------- ------------------ ------------------
Citigroup Global Markets Inc............. [______] [______] [______] [______]
Nuveen Investments, LLC.................. [______] [______] [______] [______]
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc................. [______] [______] [______] [______]
Wachovia Capital Markets, LLC............ [______] [______] [______] [______]
TOTAL: [______] [______] [______] [______]
