_________ Shares
NUVEEN INSURED TAX-FREE ADVANTAGE MUNICIPAL FUND
COMMON STOCK
UNDERWRITING AGREEMENT
November __, 2002
Salomon Smith Barney Inc.
Nuveen Investments
A.G. Edwards & Sons, Inc.
Prudential Securities Incorporated
H&R Block Financial Advisors, Inc.
Fahnestock & Co. Inc.
Janney Montgomery Scott LLC
Legg Mason Wood Walker, Incorporated
Quick & Reilly, Inc. A FleetBoston Financial Company
Raymond James & Associates, Inc.
RBC Dain Rauscher, Inc.
Ryan Beck & Co.
SunTrust Capital Markets, Inc.
Wachovia Securities, Inc.
Wedbush Morgan Securities Inc.
As Representatives of the Several Underwriters
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Dear Sirs:
The undersigned, Nuveen Insured Tax-Free Advantage Municipal Fund, a
Massachusetts business trust (the "Fund"), and Nuveen Advisory Corp., a Delaware
corporation (the "Manager"), address you as Underwriters and as the
representatives (the "Representatives") of each of the other persons, firms and
corporations, if any, listed in Schedule I hereto (herein collectively called
"Underwriters"). The Fund proposes to issue and sell an aggregate of _______
shares (the "Firm Shares") of its common shares of beneficial interest, $.01 par
value per share (the "Common Shares"), to the several Underwriters. The Fund
also proposes to sell to the Underwriters, upon the terms and conditions set
forth in Section 2 hereof, up to an additional _______ Common Shares (the
"Additional Shares"). The Firm Shares and Additional Shares are hereinafter
collectively referred to as the "Shares".
The Fund and the Manager wish to confirm as follows their agreements with
you and the other several Underwriters on whose behalf you are acting in
connection with the several purchases of the Shares by the Underwriters.
The Fund is entering into an investment management agreement with the
Manager dated _______, 2002, a master custodian agreement with State Street Bank
and Trust Company dated _______, 2002 and a transfer agency and service
agreement with State Street Bank and Trust Company dated _______, 2002 and such
agreements are herein referred to as the "Management Agreement", the "Custodian
Agreement" and the "Transfer Agency Agreement", respectively. Collectively, the
Management Agreement, the Custodian Agreement and the Transfer Agency Agreement
are herein referred to as the "Fund Agreements". This Underwriting Agreement is
herein referred to as the "Agreement".
1. Registration Statement and Prospectus.The Fund has prepared and filed
with the Securities and Exchange Commission (the "Commission") in accordance
with the provisions of the Securities Act of 1933, as amended (the "1933 Act"),
the Investment Company Act of 1940, as amended (the "1940 Act"), and the rules
and regulations of the Commission under the 1933 Act (the "1933 Act Rules and
Regulations") and the 1940 Act (the "1940 Act Rules and Regulations" and
together with the 1933 Act Rules and Regulations, the "Rules and Regulations") a
registration statement on Form N-2 (File Nos. 333-100320 and 811-21213) under
the 1933 Act and the 1940 Act and may pursuant to the Rules and Regulations
prepare and file an additional registration statement relating to a portion of
the Shares pursuant to Rule 462(b) of the 1933 Act Rules and Regulations (a
"462(b) Registration Statement") (collectively, the "registration statement"),
including a prospectus (including any statement of additional information)
relating to the Shares and a notification of registration of the Fund as an
investment company under the 1940 Act on Form N-8A (the "1940 Act
Notification"). The term "Registration Statement" as used in this Agreement
means the registration statement (including all financial schedules and
exhibits), as amended at the time it becomes effective under the 1933 Act or, if
the registration statement became effective under the 1933 Act prior to the
execution of this Agreement, as amended or supplemented at the time it became
effective prior to the execution of this Agreement, and includes any information
deemed to be included by Rule 430A under the 1933 Act Rules and Regulations. If
it is contemplated, at the time this Agreement is executed, that a
post-effective amendment to the registration statement will be filed under the
1933 Act and must be declared effective before the offering of the Shares may
commence, the term "Registration Statement" as used in this Agreement means the
registration statement as amended by said post-effective amendment. For the
avoidance of doubt, if the Fund has filed a 462(b) Registration Statement, the
term "Registration Statement" as used in this Agreement shall include such
462(b) Registration Statement. The term "Prospectus" as used in this Agreement
means the prospectus (including the statement of additional information) in the
form included in the Registration Statement or, if the prospectus (including the
statement of additional information) included in the Registration Statement
omits information in reliance on Rule 430A and such information is included in a
prospectus (including the statement of additional information) filed with the
Commission pursuant to Rule 497(h) under the 1933 Act Rules and Regulations, the
term "Prospectus" as used in this Agreement means the prospectus (including the
statement of additional information) in the form included in the Registration
Statement as
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supplemented by the addition of the information contained in the prospectus
(including the statement of additional information) filed with the Commission
pursuant to Rule 497(h). The term "Prepricing Prospectus" as used in this
Agreement means the prospectus (including the statement of additional
information) subject to completion in the form included in the registration
statement at the time of the initial filing of the registration statement with
the Commission and as such prospectus (including the statement of additional
information) shall have been amended from time to time prior to the date of the
Prospectus, together with any other prospectus (including any other statement of
additional information) relating to the Fund other than the Prospectus.
The Fund has furnished the Representatives with copies of such registration
statement, each amendment to such registration statement filed with the
Commission and each Prepricing Prospectus.
2. Agreements to Sell and Purchase. The Fund hereby agrees, subject to
all the terms and conditions set forth herein, to issue and to sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Fund and the Manager herein contained and subject to all of
the other terms and conditions set forth herein, each Underwriter agrees,
severally and not jointly, to purchase from the Fund at a purchase price per
share of $14.325 per Share (the "purchase price per share"), the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto (or
such number of Firm Shares increased as set forth in Section 10 hereof).
The Fund also agrees, subject to all the terms and conditions set forth
herein, to issue and to sell to the Underwriters and, upon the basis of the
representations, warranties and agreements of the Fund and the Manager herein
contained and subject to all the terms and conditions set forth herein, the
Underwriters shall have the right to purchase from the Fund, at the purchase
price per share, pursuant to an option (the "over-allotment option") which may
be exercised at any time and from time to time prior to 9:00 P.M., New York City
time, on the 45th day after the date of the Prospectus (or if such 45th day
shall be a Saturday or a Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange (the "NYSE") is open for trading) up
to an aggregate of _______ Additional Shares. Additional Shares may be purchased
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. Upon any exercise of the over-allotment option,
upon the basis of the representations, warranties and agreements of the Fund and
the Manager herein contained and subject to all of the other terms and
conditions set forth herein, each Underwriter agrees, severally and not jointly,
to purchase from the Fund the number of Additional Shares (subject to such
adjustments as you may determine to avoid fractional shares) which bears the
same proportion to the number of Additional Shares to be purchased by the
Underwriters as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I (or such number of Firm Shares increased as set forth
in Section 10 hereof) bears to the aggregate number of Firm Shares.
3. Terms of Public Offering.The Fund and the Manager have been advised by
you that the Underwriters propose to make a public offering of their respective
portions of the Firm
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Shares as soon after the Registration Statement and this Agreement have become
effective as in your judgment is advisable and initially to offer the Firm
Shares upon the terms set forth in the Prospectus.
4. Delivery of Shares and Payments Therefor.
(a) Delivery to the Underwriters of and payment to the Fund for
the Firm Shares shall be made at the office of Salomon Smith Barney Inc.,
388 Greenwich Street, New York, New York 10013 or through the facilities of
the Depository Trust Company or another mutually agreeable facility, at
9:00 A.M., New York City time, on November __, 2002 (the "Closing Date").
The place of closing for the Firm Shares and the Closing Date may be varied
by agreement between you and the Fund.
(b) Delivery to the Underwriters of and payment to the Fund for
any Additional Shares to be purchased by the Underwriters shall be made at
the aforementioned office of Salomon Smith Barney Inc., or through the
facilities of the Depository Trust Company or another mutually agreeable
facility, at such time on such date (an "Option Closing Date"), which may
be the same as the Closing Date, but shall in no event be earlier than the
Closing Date nor earlier than two nor later than three business days after
the giving of the notice hereinafter referred to, as shall be specified in
a written notice from you on behalf of the Underwriters to the Fund of the
Underwriters' determination to purchase a number, specified in said notice,
of Additional Shares. The place of closing for any Additional Shares and
the Option Closing Date for such Additional Shares may be varied by
agreement between you and the Fund.
(c) Certificates for the Firm Shares and for any Additional
Shares shall be registered in such names and in such denominations as you
shall request prior to 1:00 P.M., New York City time, (i) in respect of the
Firm Shares, on the second business day preceding the Closing Date and (ii)
in respect of Additional Shares, on the day of the giving of the written
notice in respect of such Additional Shares. Such certificates will be made
available to you in New York City for inspection and packaging not later
than 9:00 A.M., New York City time, on the business day next preceding the
Closing Date or any Option Closing Date, as the case may be. The
certificates evidencing the Firm Shares and any Additional Shares to be
purchased hereunder shall be delivered to you on the Closing Date or the
Option Closing Date, as the case may be, through the facilities of the
Depository Trust Company or another mutually agreeable facility, against
payment of the purchase price therefor in immediately available funds to
the order of the Fund.
5. Agreements of the Fund and the Manager. The Fund and the Manager,
jointly and severally, agree with the several Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it
is necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective under the 1933 Act before the offering of
the Firm Shares may commence, the Fund will use its reasonable best efforts
to cause the Registration Statement or such post-effective amendment to
become effective under the 1933 Act as soon as possible. If the
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Registration Statement has become effective and the Prospectus contained
therein omits certain information at the time of effectiveness pursuant to
Rule 430A of the 1933 Act Rules and Regulations, the Fund will file a
Prospectus including such information pursuant to Rule 497(h) of the 1933
Act Rules and Regulations, as promptly as practicable, but no later than
the second business day following the earlier of the date of the
determination of the offering price of the Shares or the date the
Prospectus is first used after the effective date of the Registration
Statement. If the Registration Statement has become effective and the
Prospectus contained therein does not so omit such information, the Fund
will file a Prospectus pursuant to Rule 497 (c) or (j) of the 1933 Act
Rules and Regulations as promptly as practicable, but no later than the
fifth business day following the date of the later of the effective date of
the Registration Statement or the commencement of the public offering of
the Shares after the effective date of the Registration Statement. The Fund
will advise you promptly and, if requested by you, will confirm such advice
in writing (i) when the Registration Statement or such post-effective
amendment has become effective, (ii) when the Prospectus has been timely
filed pursuant to Rule 497(c) or Rule 497(h) of the 1933 Act Rules and
Regulations or the certification permitted pursuant to Rule 497(j) of the
1933 Act Rules and Regulations has been timely filed, whichever is
applicable.
(b) The Fund will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of any request made by the
Commission for amendment of or a supplement to the Registration Statement,
any Prepricing Prospectus or the Prospectus (or any amendment or supplement
to any of the foregoing) or for additional information, (ii) of the
issuance by the Commission, the National Association of Securities Dealers,
Inc. (the "NASD"), any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official of any order
suspending the effectiveness of the Registration Statement, prohibiting or
suspending the use of the Prospectus, any Prepricing Prospectus or any
sales material (as hereinafter defined), of any notice pursuant to Section
8(e) of the 1940 Act, of the suspension of qualification of the Shares 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 Manager, any affiliate of the Fund or the Manager or any
representative or attorney of the Fund or the Manager of any other material
communication from the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court or
any other governmental, regulatory, self-regulatory or administrative
agency or any official relating to the Fund (if such communication relating
to the Fund is received by such person within three years after the date of
this Agreement), the Registration Statement, the 1940 Act Notification, the
Prospectus, any Prepricing Prospectus, any sales material (as hereinafter
defined) (or any amendment or supplement to any of the foregoing), this
Agreement or any of the Fund Agreements and (iv) within the period of time
referred to in paragraph (f) below, of any material adverse change in the
condition (financial or other), business, prospects, properties, net assets
or results of operations of the Fund or the Manager or of the happening of
any event which makes any statement of a material fact made in the
Registration Statement, the Prospectus, any Prepricing Prospectus or any
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sales material (as hereinafter defined) (or any amendment or supplement to
any of the foregoing) untrue or which requires the making of any additions
to or changes in the Registration Statement, the Prospectus, any Prepricing
Prospectus or any sales materials (as hereinafter defined) (or any
amendment or supplement to any of the foregoing) in order to state a
material fact required by the 1933 Act, the 1940 Act or the Rules and
Regulations to be stated therein or necessary in order to make the
statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading or of the
necessity to amend or supplement the Registration Statement, the
Prospectus, any Prepricing Prospectus or any sales material (as hereinafter
defined) (or any amendment or supplement to any of the foregoing) to comply
with the 1933 Act, the 1940 Act, the Rules and Regulations or any other law
or order of any court or regulatory body. If at any time the Commission,
the NASD, any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official shall issue any
order suspending the effectiveness of the Registration Statement,
prohibiting or suspending the use of the Prospectus, any Prepricing
Prospectus or any sales material (as hereinafter defined) (or any amendment
or supplement to any of the foregoing) or suspending the qualification of
the Shares for offering or sale in any jurisdiction, the Fund will use its
reasonable best efforts to obtain the withdrawal of such order at the
earliest possible time.
(c) The Fund will furnish to you, without charge, three signed
copies of the registration statement and the 1940 Act Notification as
originally filed with the Commission and of each amendment thereto,
including financial statements and all exhibits thereto (except any
post-effective amendment required by Rule 8b-16 of the 1940 Act Rules and
Regulations which is filed with the Commission after the later of (x) one
year from the date of this Agreement and (y) the date on which the
distribution of the Shares is completed) and will also furnish to you,
without charge, such number of conformed copies of the registration
statement as originally filed and of each amendment thereto (except any
post-effective amendment required by Rule 8b-16 of the 1940 Act Rules and
Regulations which is filed with the Commission after the later of (x) one
year from the date of this Agreement and (y) the date on which the
distribution of the Shares is completed), with or without exhibits, as you
may reasonably request.
(d) The Fund will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus, any
Prepricing Prospectus or any sales material (as hereinafter defined) (or
any amendment or supplement to any of the foregoing) of which you shall not
previously have been advised or to which you shall reasonably object within
a reasonable time after being so advised or (ii) so long as, in the opinion
of counsel for the Underwriters, a Prospectus is required to be delivered
in connection with sales by any Underwriter or dealer, file any
information, documents or reports pursuant to the Securities Exchange Act
of 1934, as amended (the "1934 Act"), without delivering a copy of such
information, documents or reports to you, as Representatives of the
Underwriters, prior to or concurrently with such filing.
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(e) Prior to the execution and delivery of this Agreement, the
Fund has delivered to you, without charge, in such quantities as you have
reasonably requested, copies of each form of any Prepricing Prospectus. The
Fund consents to the use, in accordance with the provisions of the 1933 Act
and with the securities or Blue Sky laws of the jurisdictions in which the
Shares are offered by the several Underwriters and by dealers, prior to the
date of the Prospectus, of each Prepricing Prospectus so furnished by the
Fund.
(f) As soon after the execution and delivery of this Agreement
as possible and thereafter from time to time, for such period as in the
opinion of counsel for the Underwriters a prospectus is required by the
1933 Act to be delivered in connection with sales of Shares by any
Underwriter or dealer, the Fund will expeditiously deliver to each
Underwriter and each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as you may
reasonably request. The Fund consents to the use of the Prospectus (and of
any amendments or supplements thereto) in accordance with the provisions of
the 1933 Act and with the securities or Blue Sky laws of the jurisdictions
in which the Shares are offered by the several Underwriters and by all
dealers to whom Shares may be sold, both in connection with the offering or
sale of the Shares and for such period of time thereafter as the Prospectus
is required by law to be delivered in connection with sales of Shares by
any Underwriter or dealer. If during such period of time any event shall
occur that in the judgment of the Fund or in the opinion of counsel for the
Underwriters is required to be set forth in the Prospectus (as then amended
or supplemented) or should be set forth therein in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading or if it is necessary to supplement or amend the
Prospectus to comply with the 1933 Act, the 1940 Act, the Rules and
Regulations or any other law, rule or regulation, the Fund will forthwith
prepare and, subject to the provisions of paragraph (d) above, file with
the Commission an appropriate amendment or supplement thereto and will
expeditiously furnish to the Underwriters and dealers, without charge, such
number of copies thereof as they shall reasonably request. In the event
that the Prospectus is to be amended or supplemented, the Fund, if
requested by you, will promptly issue a press release announcing or
disclosing the matters to be covered by the proposed amendment or
supplement.
(g) The Fund will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers
under the securities or Blue Sky laws of such jurisdictions as you may
designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall the Fund be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action which would subject it to service of process in
suits, other than those arising out of the offering or sale of the Shares,
in any jurisdiction where it is not now so subject.
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(h) The Fund will make generally available to its security
holders an earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as
practicable after the end of such period, which earnings statement shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 of the
1933 Act Rules and Regulations.
(i) The Fund will comply with the undertaking set forth in
paragraph 6 of Item 33 of Part C of the Registration Statement.
(j) During the period of five years hereafter, the Fund will
furnish to you (i) as soon as available, a copy of each report of the Fund
mailed to shareholders or filed with the Commission and (ii) from time to
time such other information concerning the Fund as you may reasonably
request.
(k) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (other than pursuant to
the second paragraph of Section 10 hereof or by notice given by you
terminating this Agreement pursuant to Section 10 or Section 11 hereof) or
if this Agreement shall be terminated by the Underwriters because of any
failure or refusal on the part of the Fund or the Manager to comply with
the terms or fulfill any of the conditions of this Agreement, the Fund and
the Manager, jointly and severally, agree to reimburse the Representatives
for all out-of-pocket expenses (including fees and expenses of counsel for
the Underwriters) incurred by you in connection herewith, but the Fund and
the Manager shall in no event be liable for any internal cost of the
Underwriters or any loss of anticipated profits or speculative,
consequential or similar damages for such termination.
(l) The Fund will direct the investment of the net proceeds of
the offering of the Shares in such a manner as to comply with the
investment objectives, policies and restrictions of the Fund as described
in the Prospectus.
(m) 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 1933 Act Rules and Regulations, whichever is applicable or,
if applicable, will file in a timely fashion the certification permitted by
Rule 497(j) of the 1933 Act Rules and Regulations and will advise you of
the time and manner of such filing.
(n) Except as provided in this Agreement or pursuant to any
dividend reinvestment plan of the Fund in effect on the date hereof, the
Fund will not sell, contract to sell or otherwise dispose of, any Common
Shares or any securities convertible into or exercisable or exchangeable
for Common Shares or grant any options or warrants to purchase Common
Shares, for a period of 180 days after the date of the Prospectus, without
the prior written consent of Salomon Smith Barney Inc.
(o) Except as stated in this Agreement and in the Prospectus,
neither the Fund nor the Manager has taken, nor will it take, directly or
indirectly, any action designed to
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or that might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Shares.
(p) The Fund will use its reasonable best efforts to have the
Common Shares listed, subject to notice of issuance, on the American Stock
Exchange (the "AMEX") concurrently with the effectiveness of the
Registration Statement and to comply with the rules and regulations of such
exchange.
6. Representations and Warranties of the Fund and the Manager. The Fund
and the Manager, jointly and severally, represent and warrant to each
Underwriter that:
(a) Each Prepricing Prospectus included as part of the
registration statement as originally filed or as part of any amendment or
supplement thereto complied when so filed in all material respects with the
provisions of the 1933 Act, the 1940 Act and the Rules and Regulations.
(b) The Registration Statement, in the form in which it became
or becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective and the Prospectus
and any amendment or supplement thereto when filed with the Commission
under Rule 497 of the 1933 Act Rules and Regulations and the 1940 Act
Notification when originally filed with the Commission and any amendment or
supplement thereto when filed with the Commission complied or will comply
in all material respects with the provisions of the 1933 Act, the 1940 Act
and the Rules and Regulations and did not or will not at any such times
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in light of the circumstances under
which they were made) not misleading; except that this representation and
warranty does not apply to statements in or omissions from the Registration
Statement or the Prospectus (or any amendment or supplement thereto) made
in reliance upon and in conformity with information relating to any
Underwriter furnished to the Fund in writing by or on behalf of any
Underwriter through you expressly for use therein.
(c) All the outstanding Common Shares of the Fund have been duly
authorized and validly issued, are fully paid and, except as described in
the Registration Statement, nonassessable and are free of any preemptive or
similar rights; the Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with
the terms hereof, will be validly issued, fully paid and, except as
described in the Registration Statement, nonassessable and free of any
preemptive or similar rights and the capital stock of the Fund conforms to
the description thereof in the Registration Statement and the Prospectus
(and any amendment or supplement to either of them).
(d) The Fund has been duly formed and is validly existing in
good standing as a 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
9
described in the Registration Statement and the Prospectus (and any
amendment or supplement to either of them) and is duly registered and
qualified to conduct business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure so to
register or to qualify does not have a material, adverse effect on the
condition (financial or other), business, properties, net assets or results
of operations of the Fund. The Fund has no subsidiaries.
(e) There are no legal or governmental proceedings pending or,
to the knowledge of the Fund, threatened, against the Fund or to which the
Fund or any of its properties is subject, that are required to be described
in the Registration Statement or the Prospectus (or any amendment or
supplement to either of them) but are not described as required by the 1933
Act, the 1940 Act or the Rules and Regulations and there are no agreements,
contracts, indentures, leases or other instruments that are required to be
described in the Registration Statement or the Prospectus (or any amendment
or supplement to either of them) or to be filed as an exhibit to the
Registration Statement that are not described or filed as required by the
1933 Act, the 1940 Act or the Rules and Regulations.
(f) The Fund is not in violation of its Declaration of Trust or
By-Laws or in material violation of any material law, ordinance,
administrative or governmental rule or regulation applicable to the Fund or
of any material decree of the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court or
any other governmental, regulatory, self-regulatory or administrative
agency or any official having jurisdiction over the Fund or in breach or
default in any material respect in the performance of any obligation,
agreement or condition contained in any material bond, debenture, note or
any other evidence of indebtedness or in any agreement, indenture, lease or
other instrument to which the Fund is a party or by which it or any of its
properties may be bound.
(g) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement nor any of the Fund Agreements by
the Fund, nor the consummation by the Fund of the transactions contemplated
hereby or thereby (A) requires any consent, approval, authorization or
other order of or registration or filing which has not yet been obtained or
made with the Commission, the NASD, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official (except compliance
with the securities or Blue Sky laws of various jurisdictions which have
been or will be effected in accordance with this Agreement and except for
compliance with the filing requirements of the NASD Division of Corporate
Finance) or conflicts or will conflict with or constitutes or will
constitute a breach of the Declaration of Trust or By-Laws of the Fund or
(B) conflicts or will conflict with or constitutes or will constitute a
breach of or a default under, any material agreement, indenture, lease or
other instrument to which the Fund is a party or by which it or any of its
properties may be bound or materially violates or will materially violate
any material statute, law, regulation or filing or judgment, injunction,
order or decree applicable to the Fund or any of its properties or will
result in
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the creation or imposition of any material lien, charge or encumbrance upon
any property or assets of the Fund pursuant to the terms of any agreement
or instrument to which it is a party or by which it may be bound or to
which any of the property or assets of the Fund is subject.
(h) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), except as otherwise stated therein, (A) there has been
no material, adverse change in the condition (financial or other),
business, properties, net assets or results of operations of the Fund or
business prospects (other than as a result of a change in the financial
markets generally) of the Fund, whether or not arising in the ordinary
course of business, (B) there have been no transactions entered into by the
Fund which are material to the Fund other than those in the ordinary course
of its business as described in the Prospectus (and any amendment or
supplement thereto) and (C) there has been no dividend or distribution of
any kind declared, paid or made by the Fund on any class of its common
stock.
(i) The accountants, Ernst & Young LLP, who have audited or
shall audit the Statement of Net Assets included in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them), are an independent public accounting firm as required by the 1933
Act, the 1940 Act and the Rules and Regulations.
(j) The financial statements, together with related schedules
and notes, included in the Registration Statement and the Prospectus (or
any amendment or supplement to either of them) present fairly the financial
position of the Fund on the basis stated in the Registration Statement and
the Prospectus at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved except as disclosed
therein; and the other financial and statistical information and data
included in the Registration Statement or the Prospectus (or any amendment
or supplement thereto) are accurately derived from such financial
statements and the books and records of the Fund.
(k) The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497 under
the Rules and Regulations, has taken all required action under the 1933
Act, the 1940 Act and the Rules and Regulations to make the public offering
and consummate the sale of the Shares as contemplated by this Agreement.
(l) The execution and delivery of and the performance by the
Fund of its obligations under this Agreement and the Fund Agreements have
been duly and validly authorized by the Fund and this Agreement and the
Fund Agreements have been duly executed and delivered by the Fund and
constitute the valid and legally binding agreements of the Fund,
enforceable against the Fund in accordance with their terms, except as
rights to indemnity and contribution hereunder may be limited by federal or
state securities laws and subject to the qualification that the
enforceability of the Fund's obligations hereunder and thereunder may be
limited by bankruptcy, insolvency,
11
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(m) Except as disclosed in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them), subsequent
to the respective dates as of which such information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), the Fund has not incurred any liability or obligation,
direct or contingent, that is material to the Fund and there has not been
any change in the capital stock or material increase in the short-term debt
or long-term debt of the Fund.
(n) The Fund has not distributed and, prior to the later to
occur of (i) the Closing Date or (ii) completion of the distribution of the
Shares, will not distribute to the public in either printed or electronic
form any offering material in connection with the offering and sale of the
Shares other than the Registration Statement, the Prepricing Prospectus
included in Pre-Effective Amendment No. 1 to the Registration Statement,
the Prospectus and the advertisements/sales literature filed by Nuveen
Investments with the NASD on _______, 2002.
(o) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus (and any amendment or supplement thereto); the Fund has
fulfilled and performed all its material obligations with respect to such
permits and no event has occurred which allows or, after notice or lapse of
time, would allow, revocation or termination thereof or results in any
other material impairment of the rights of the Fund under any such permit,
subject in each case to such qualification as may be set forth in the
Prospectus (and any amendment or supplement thereto); and, except as
described in the Prospectus (and any amendment or supplement thereto), none
of such permits contains any restriction that is materially burdensome to
the Fund.
(p) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization and with the investment policies and restrictions of
the Fund and the applicable requirements of the 1940 Act, the 1940 Act
Rules and Regulations and the Internal Revenue Code of 1986, as amended
(the "Code"); (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles, to calculate net asset value, to maintain
accountability for assets and to maintain material compliance with the
books and records requirements under the 1940 Act and the 1940 Act Rules
and 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.
12
(q) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or licensee of
any patents, patent licenses, trademarks, service marks or trade names
which it does not own, possess or license.
(r) Except as stated in this Agreement and in the Prospectus
(and any amendment or supplement thereto), the Fund has not taken and will
not take, directly or indirectly, any action designed to or which should
reasonably be expected to cause or result in or which will constitute
stabilization or manipulation of the price of the Common Shares in
violation of federal securities laws and the Fund is not aware of any such
action taken or to be taken by any affiliates of the Fund.
(s) The Fund is duly registered under the 1940 Act as a
closed-end, diversified management investment company and the 1940 Act
Notification has been duly filed with the Commission and, at the time of
filing thereof and at the time of filing any amendment or supplement
thereto, conformed in all material respects with all applicable provisions
of the 1940 Act and the 1940 Act Rules and Regulations. The Fund has not
received any notice from the Commission pursuant to Section 8(e) of the
1940 Act with respect to the 1940 Act Notification or the Registration
Statement (or any amendment or supplement to either of them).
(t) All advertising, sales literature or other promotional
material (including "prospectus wrappers" and "broker kits"), whether in
printed or electronic form, authorized in writing by or prepared by the
Fund or the Manager for use in connection with the offering and sale of the
Shares (collectively, "sales material") complied and comply in all material
respects with the applicable requirements of the 1933 Act, the 1933 Act
Rules and Regulations and the rules and interpretations of the NASD and if
required to be filed with the NASD under the NASD's conduct rules were so
filed. No sales material contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(u) This Agreement and each of the Fund Agreements complies in
all material respects with all applicable provisions of the 1940 Act, the
1940 Act Rules and Regulations, the Investment Advisers Act of 1940, as
amended (the "Advisers Act") and the rules and regulations adopted by the
Commission under the Advisers Act (the "Advisers Act Rules and
Regulations").
(v) No holder of any security of the Fund has any right to
require registration of Common Shares or any other security of the Fund
because of the filing of the registration statement or consummation of the
transactions contemplated by this Agreement.
(w) The Shares have been duly approved for listing upon notice
of issuance on the AMEX and the Fund's registration statement on Form 8-A,
under the 1934 Act, has become effective.
13
(x) The Fund intends to direct the investment of the proceeds of
the offering of the Shares in such a manner as to comply with the
requirements of Subchapter M of the Code.
7. Representations and Warranties of the Manager. The Manager represents
and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware, with
full corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement and
the Prospectus (and any amendment or supplement to either of them) and is
duly registered and qualified to conduct business and is in good standing
in each jurisdiction or place where the nature of its properties or conduct
of its business requires such registration or qualification, except where
the failure so to register or to qualify would not have a material, adverse
effect on the condition (financial or other), business, properties, net
assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser
under the Advisers Act and is not prohibited by the Advisers Act, the 1940
Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and
Regulations from acting under the Management Agreement for the Fund as
contemplated by the Registration Statement and the Prospectus (or any
amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this
Agreement and the Management Agreement, the execution and delivery of, and
the performance by the Manager of its obligations under, this Agreement and
the Management Agreement have been duly and validly authorized by the
Manager and this Agreement and the Management Agreement have been duly
executed and delivered by the Manager and constitute the valid and legally
binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it
necessary for the performance of its services and obligations as
contemplated in the Registration Statement, the Prospectus (or any
amendment or supplement thereto) and under this Agreement and the
Management Agreement.
(e) The description of the Manager and its business, and the
statements attributable to the Manager, in the Registration Statement and
the Prospectus (and any amendment or supplement thereto) complied and
comply in all material respects with the provisions of the 1933 Act, the
1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act
Rules and Regulations and did not and will not contain an untrue
14
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein (in the case
of a prospectus, in light of the circumstances under which they were made)
not misleading.
(f) There are no legal or governmental proceedings pending or,
to the knowledge of the Manager, threatened against the Manager or to which
any of its properties is subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them) but are not described as required or that reasonably should
be expected to result in any material, adverse change in the condition
(financial or other), business, properties, net assets or results of
operations of the Manager or that reasonably should be expected to have a
material, adverse effect on the ability of the Manager to fulfill its
obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), except as otherwise stated therein, (A) there has been
no material, adverse change in the condition (financial or other),
business, properties, net assets or results of operations or business
prospects of the Manager, whether or not arising from the ordinary course
of business and (B) there have been no transactions entered into by the
Manager which are material to the Manager other than those in the ordinary
course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus; the Manager 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 Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all
material respects with all applicable provisions of the 1940 Act, the 1940
Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(j) Neither the execution, delivery or performance of this
Agreement or the Management Agreement by the Manager, nor the consummation
by the Manager 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 compliance with the securities or Blue Sky
laws of various jurisdictions which have been or will be effected in
accordance with this Agreement and except for compliance with the filing
requirements of the NASD Division of Corporate Finance) or conflicts or
will conflict with or constitutes or will constitute a breach of or a
default under, the Certificate of Incorporation or By-Laws of the Manager
or (B) conflicts
15
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 Manager 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 Manager 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 Manager 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 Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus
(and in any amendment or supplement thereto), the Manager has not taken and
will not take, directly or indirectly, any action designed to or which
should reasonably be expected to cause or result in or which will
constitute, stabilization or manipulation of the price of the Common Shares
in violation of federal securities laws and the Manager is not aware of any
such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available
any promotional materials intended for use only by qualified broker-dealers
and registered representatives thereof by means of an Internet web site or
similar electronic means, the Manager will install and maintain
pre-qualification and password-protection or similar procedures which are
reasonably designed to effectively prohibit access to such promotional
materials by persons other than qualified broker-dealers and registered
representatives thereof.
8. Indemnification and Contribution.
(a) The Fund and the Manager, jointly and severally, agree to
indemnify and hold harmless each of you and each other Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, from and against any and
all losses, claims, damages, liabilities and expenses, joint or several
(including reasonable costs of investigation) arising out of or based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus, any Prepricing
Prospectus, any sales material (or any amendment or supplement to any of
the foregoing) or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus, in
light of the circumstances under which they were made) not misleading,
except insofar as such losses, claims, damages, liabilities or expenses
arise out of or are based upon any untrue statement or omission or alleged
untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating
to such Underwriters furnished in writing to the Fund by or on behalf of
any Underwriter through you expressly for use in connection therewith;
provided, however, that the foregoing indemnity with respect to the
Registration Statement, the Prospectus or any Prepricing Prospectuses (or
any amendment or supplement to any of the foregoing)
16
shall not inure to the benefit of any Underwriter from whom the person
asserting any loss, claim, damage, liability or expense purchased Shares,
if it is shown that a copy of the Prospectus, as then amended or
supplemented, which would have cured any defect giving rise to such loss,
claim, damage, liability or expense was not sent or delivered to such
person by or on behalf of such Underwriter, if required by law to be so
delivered, at or prior to the confirmation of the sale of such Shares to
such person and such Prospectus, amendments and supplements had been
provided by the Fund to the Underwriters in the requisite quantity and on a
timely basis to permit proper delivery. The foregoing indemnity agreement
shall be in addition to any liability which the Fund or the Manager may
otherwise have.
(b) If any action, suit or proceeding shall be brought against
any Underwriter or any person controlling any Underwriter in respect of
which indemnity may be sought against the Fund or the Manager, such
Underwriter or such controlling person shall promptly notify the Fund or
the Manager and the Fund or the Manager shall assume the defense thereof,
including the employment of counsel and the payment of all fees and
expenses. Such Underwriter or any such controlling person shall have the
right to employ separate counsel in any such action, suit or proceeding and
to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or controlling person
unless (i) the Fund or the Manager have agreed in writing to pay such fees
and expenses, (ii) the Fund and the Manager have failed within a reasonable
time to assume the defense and employ counsel or (iii) the named parties to
any such action, suit or proceeding (including any impleaded parties)
include both such Underwriter or such controlling person and the Fund or
the Manager and such Underwriter or such controlling person shall have been
advised by its counsel that representation of such indemnified party and
the Fund or the Manager by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the Fund and the
Manager shall not have the right to assume the defense of such action, suit
or proceeding on behalf of such Underwriter or such controlling person). It
is understood, however, that the Fund and the Manager shall, in connection
with any one such action, suit or proceeding or separate but substantially
similar or related actions, suits or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances be liable for
the reasonable fees and expenses of only one separate firm of attorneys (in
addition to any local counsel if there is any action, suit or proceeding in
more than one jurisdiction) at any time for all such Underwriters and
controlling persons not having actual or potential differing interests with
you or among themselves, which firm shall be designated in writing by
Salomon Smith Barney Inc. and that, subject to the requirements of 1940 Act
Release No. 11330, all such fees and expenses shall be reimbursed promptly
as they are incurred. The Fund and the Manager shall not be liable for any
settlement of any such action, suit or proceeding effected without the
written consent of the Fund or the Manager, but if settled with such
written consent or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the Fund and the Manager agree to
indemnify and hold harmless any Underwriter, to the extent provided in the
preceding
17
paragraph, and any such controlling person from and against any loss,
liability, damage or expense by reason by such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Fund and the Manager, their trustees,
directors, any officers of the Fund who sign the Registration Statement and
any person who controls the Fund or the Manager within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, to the same
extent as the foregoing indemnity from the Fund and the Manager to each
Underwriter, but only with respect to information relating to such
Underwriter furnished in writing by or on behalf of such Underwriter
through you expressly for use in the Registration Statement, the Prospectus
or any Prepricing Prospectus (or any amendment or supplement to any of the
foregoing). If any action, suit or proceeding shall be brought against the
Fund or the Manager, any of their trustees, directors, any such officer or
any such controlling person, based on the Registration Statement, the
Prospectus or any Prepricing Prospectus (or any amendment or supplement to
any of the foregoing) and in respect of which indemnity may be sought
against any Underwriter pursuant to this paragraph (c), such Underwriter
shall have the rights and duties given to the Fund and the Manager by
paragraph (b) above (except that if the Fund or the Manager shall have
assumed the defense thereof such Underwriter shall not be required to do
so, but may employ separate counsel therein and participate in the defense
thereof, but the fees and expenses of such counsel shall be at such
Underwriter's expense) and the Fund and the Manager, their trustees,
directors, any such officer and any such controlling person shall have the
rights and duties given to the Underwriters by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability which
the Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities
or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Fund and the Manager on the one hand
(treated jointly for this purpose as one person) and the Underwriters on
the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Fund and
the Manager on the one hand (treated jointly for this purpose as one
person) and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Fund and the Manager
on the one hand (treated jointly for this purpose as one person) and the
Underwriters on the other hand shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Fund as set forth in the table on the cover page of the
Prospectus bear to the total payments received by the Underwriters with
respect to the Firm Shares as set
18
forth in the table on the cover page of the Prospectus. The relative fault
of the Fund and the Manager on the one hand (treated jointly for this
purpose as one person) and of the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Fund and the Manager on the one hand (treated jointly for this purpose as
one person) or by the Underwriters on the other hand and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Fund, the Manager and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities
and expenses referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with defending
any such action, suit or proceeding. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price of the Shares underwritten by
it and distributed to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 8 are
several in proportion to the respective number of Firm Shares set forth
opposite their names in Schedule I (or such numbers of Firm Shares
increased as set forth in Section 10 hereof) and not joint.
(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability from
claimants on claims that are the subject matter of such action, suit or
proceeding.
(g) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution
under this Section 8 shall be paid by the indemnifying party to the
indemnified party as such losses, claims, damages, liabilities or expenses
are incurred. The indemnity and contribution agreements contained in this
Section 8 and the representations and warranties of the Fund and the
Manager 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
Manager or their trustees, directors or officers or any person controlling
the Fund or the Manager, (ii) acceptance of any Shares and payment
19
therefor hereunder and (iii) any termination of this Agreement. A successor
to any Underwriter or to the Fund, the Manager or their trustees, directors
or officers or any person controlling any Underwriter, the Fund or the
Manager shall be entitled to the benefits of the indemnity, contribution
and reimbursement agreements contained in this Section 8.
9. Conditions of Underwriters' Obligations.The several obligations of the
Underwriters to purchase any Shares hereunder are subject to, in the good faith
judgment of the Underwriters, the accuracy of and compliance with the
representations, warranties and agreements of and by the Fund and the Manager
contained herein on and as of the date hereof, the date on which the
Registration Statement becomes or became effective, the date of the Prospectus
(and of any amendment or supplement thereto), the Closing Date and, with respect
to any Additional Shares, any Option Closing Date; to the accuracy and
completeness of all statements made by the Fund, the Manager or any of their
officers in any certificate delivered to the Representatives or their counsel
pursuant to this Agreement and to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it
is necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the Registration Statement or such post-effective amendment shall
have become effective not later than 5:30 p.m., New York City time, on the
date hereof or at such later date and time as shall be consented to in
writing by you and all filings, if any, required by Rules 497 and 430A
under the 1933 Act Rules and Regulations shall have been timely made; no
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceeding for that purpose shall have been instituted
or, to the knowledge of the Fund, the Manager 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
Bell, Boyd & Lloyd LLC, special counsel for the Fund and Manager, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, to the effect that:
(i) The Fund is a business trust duly established,
validly existing and in good standing 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 thereto through the date of the
opinion) and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction where the
nature of its properties or the conduct of its business requires
such registration or qualification, except where the failure so
to register or to qualify does not have a material, adverse
effect on the condition (financial or other), business,
properties, net assets or results of operations of the Fund;
(ii) The authorized and outstanding capital stock of the
Fund is as set forth in the Registration Statement and Prospectus
(or any amendment or
20
supplement thereto through the date of the opinion); and the
description of the authorized capital stock of the Fund contained
in the Prospectus (or any amendment or supplement thereto through
the date of the opinion) under the caption "Description of
Shares" conforms in all material respects as to legal matters to
the terms thereof contained in the Fund's Declaration of Trust;
(iii) All of the shares of capital stock of the Fund
outstanding prior to the issuance of the Shares have been duly
authorized and validly issued and are fully paid and
nonassessable, except that, as described in the Prospectus under
the heading, "Certain Provisions in the Declaration of Trust,"
shareholders of the Fund may under certain circumstances be held
personally liable for its obligations;
(iv) The Shares have been duly authorized and, when
issued and delivered to the Underwriters against payment therefor
in accordance with the terms hereof, will be validly issued,
fully paid and nonassessable and not subject to any preemptive
rights that entitle or will entitle any person to acquire any
Shares upon the issuance thereof by the Fund, except that, as
described in the Prospectus under the heading, "Certain
Provisions in the Declaration of Trust," shareholders of the Fund
may under certain circumstances be held personally liable for its
obligations;
(v) The form of certificate for the Shares is in due and
proper form and complies with the requirements of all applicable
laws and the AMEX;
(vi) The Fund has the power and authority to enter into
this Agreement and the Fund Agreements and to issue, sell and
deliver the Shares to the Underwriters as provided herein and
this Agreement and each of the Fund Agreements have been duly
authorized, executed and delivered by the Fund and assuming due
authorization, execution and delivery by the other parties
thereto and that the performance of this Agreement and the Fund
Agreements by such other parties will not violate law, agreements
to which such other parties or their properties are subject or
orders applicable to such other parties, constitute the valid,
legal and binding agreements of the Fund, enforceable against the
Fund in accordance with their terms, except as enforcement of
rights to indemnity hereunder may be limited by federal or state
securities laws or principles of public policy and subject to the
qualification that the enforceability of the Fund's obligations
hereunder and thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to
or affecting creditors' rights generally and by general equitable
principles, whether enforcement is considered in a proceeding in
equity or at law;
(vii) This Agreement constitutes a valid, legal and
binding agreement of the Manager, enforceable against the Manager
in accordance with its terms, except as enforcement of rights to
indemnity hereunder may be limited by federal or state securities
laws or principles of public policy and subject to the
qualification that the enforceability of the Manager's
obligations hereunder may
21
be limited by bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors' rights
generally and by general equitable principles, whether
enforcement is considered in a proceeding in equity or at law;
(viii) The Fund Agreements comply in all material respects
with all applicable provisions of the 1933 Act, the 1940 Act, the
Advisers Act, the Rules and Regulations and the Advisers Act
Rules and Regulations;
(ix) The Fund is not in violation of its Declaration of
Trust or By-Laws or to the best knowledge of such counsel after
reasonable inquiry, is not in material default in the performance
of any material obligation, agreement or condition contained in
any bond, debenture, note or other evidence of indebtedness,
except as may be disclosed in the Prospectus (and any amendment
or supplement thereto);
(x) No consent, approval, authorization or order of or
registration or filing with the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental body, agency or
regulatory, self-regulatory or administrative agency or any
official is required on the part of the Fund (except as have been
obtained under the 1933 Act and the 1934 Act or such as may be
required under state securities or Blue Sky laws governing the
purchase and distribution of the Shares) for the valid issuance
and sale of the Shares to the Underwriters as contemplated by
this Agreement, performance of the Fund Agreements or this
Agreement by the Fund, the consummation by the Fund of the
transactions contemplated thereby or hereby or the adoption of
the Fund's Dividend Reinvestment Plan;
(xi) Neither the offer, sale or delivery of the Shares,
the execution, delivery or performance of this Agreement or the
Fund Agreements, compliance by the Fund with the provisions
hereof or thereof, consummation by the Fund of the transactions
contemplated hereby or thereby nor the adoption of the Fund's
Dividend Reinvestment Plan violates the Declaration of Trust or
By-Laws of the Fund or any material agreement, indenture, lease
or other instrument to which the Fund is a party or by which it
or any of its properties is bound that is an exhibit to the
Registration Statement or that is known to such counsel after
reasonable inquiry or, to the best of such counsel's knowledge
after reasonable inquiry, will result in the creation or
imposition of any material lien, charge or encumbrance upon any
property or assets of the Fund, nor, to the best of such
counsel's knowledge after reasonable inquiry, will any such
action result in any violation of any existing material law,
regulation, ruling (assuming compliance with all applicable state
securities and Blue Sky laws), judgment, injunction, order or
decree known to such counsel after reasonable inquiry, applicable
to the Fund or any of its properties, except that, in the
published opinion of the Commission, the indemnification
provisions in this Agreement and the Fund Agreements, insofar
22
as they relate to indemnification for liabilities arising under
the 1933 Act, are against public policy as expressed in the 1933
Act and therefore unenforceable;
(xii) The Registration Statement and all post-effective
amendments, if any, have become effective under the 1933 Act and,
to the best knowledge of such counsel after reasonable inquiry,
no order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose are
pending before or contemplated by the Commission; and any filing
of the Prospectus and any amendments or supplements thereto
required pursuant to Rule 497 of the 1933 Act Rules and
Regulations prior to the date of such opinion has been made in
accordance with Rule 497;
(xiii) The Fund is duly registered with the Commission
under the 1940 Act as a closed-end, diversified management
investment company and all action has been taken by the Fund as
required by the 1933 Act and the 1940 Act and the Rules and
Regulations in connection with the issuance and sale of the
Shares to make the public offering and consummate the sale of the
Shares as contemplated by this Agreement;
(xiv) The statements made in the Registration Statement
and the Prospectus (and any amendment or supplement to either of
them through the date of the opinion) under the caption "Tax
Matters" have been reviewed by such counsel and to the extent
they describe or summarize tax laws, doctrines or practices of
the United States, present a fair and accurate description or
summary thereof as of the date of the opinion;
(xv) The statements in the Registration Statement and
Prospectus (and any amendment or supplement to either of them
through the date of the opinion), insofar as they are
descriptions of contracts, agreements or other legal documents or
refer to statements of law or legal conclusions, are accurate and
present fairly the information required to be shown;
(xvi) The Registration Statement and the Prospectus (and
any amendment or supplement to either of them through the date of
the opinion) comply as to form in all material respects with the
requirements of the 1933 Act, the 1940 Act and the Rules and
Regulations (except that no opinion need be expressed as to the
financial statements and the notes thereto and the schedules and
other financial and statistical data included therein as to which
such counsel need not express any opinion);
(xvii) To the best knowledge of such counsel after
reasonable inquiry, (A) other than as described or contemplated
in the Prospectus (or any amendment or supplement thereto through
the date of the opinion), there are no actions, suits or other
legal or governmental proceedings pending or expressly threatened
against the Fund (through the date of the opinion) and (B) there
are no material agreements, contracts, indentures, leases or
other instruments that are required to
23
be described in the Registration Statement or the Prospectus (or
any amendment or supplement to either of them through the date of
the opinion) or to be filed as an exhibit to the Registration
Statement that are not described or filed as required, as the
case may be;
(xviii) To the best knowledge of such counsel after
reasonable inquiry, the Fund is not in violation of any law,
ordinance, administrative or governmental rule or regulation
applicable to the Fund or of any decree of the Commission, the
NASD, any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental,
regulatory, self-regulatory or administrative agency or any
official having jurisdiction over the Fund; and
(xix) The Shares are duly authorized for listing, subject
to official notice of issuance, on the American Stock Exchange
and the Fund's registration statement on Form 8-A under the 1934
Act is effective.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement, such counsel
has participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof, and
nothing has come to the attention of such counsel that has caused it to
believe that the Registration Statement, at the time the Registration
Statement became effective or the Prospectus, as of its date and as of the
Closing Date or the Option Closing Date, as the case may be, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
(in the case of a prospectus, in light of the circumstances under which
they were made) not misleading or that any amendment or supplement to the
Prospectus, as of the Closing Date or the Option Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no view with respect to the
financial statements and the notes thereto and the schedules and other
financial and statistical data included in the Registration Statement or
the Prospectus).
In rendering such opinion, such counsel may limit such opinion to
matters involving the application of the laws of the State of Illinois, The
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 Bingham McCutchen LLP or, as to other
matters, other counsel of good standing whom they believe to be reliable
and who are satisfactory to the Representatives; provided that (X) such
reliance is expressly authorized by the opinion so relied upon and a copy
of each such opinion is delivered to the Representatives and is, in form
and substance, satisfactory to them and their counsel and (Y) Bell, Boyd &
Lloyd LLC states in their opinion that they believe that they and the
Underwriters are justified in relying thereon. As to matters involving the
application of the
24
federal laws of the United States to the Taxable Equivalent Yield Tables
contained in Appendix B to the statement of additional information, such
counsel may rely on the comfort letter provided by Chapman and Cutler. In
addition, in giving the opinion contained in Section 9(b)(vii) above, such
counsel may rely on the paragraphs in the opinion of Gifford R. Zimmerman
corresponding to Sections 9(c)(i), (iii) and (v) below; provided that (x)
such reliance is expressly authorized by the opinion so relied upon and (y)
Bell, Boyd & Lloyd LLC states in its opinion that it believes that it and
the Underwriters are justified in relying thereon.
(c) You shall have received on the Closing Date an opinion of
Gifford R. Zimmerman, Managing Director, Assistant Secretary and General
Counsel for the Manager, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) The Manager is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
Delaware with full corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus (and
any amendment or supplement to either of them) and is duly
registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such
registration or qualification, except where the failure to so
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 Manager;
(ii) The Manager is duly registered with the Commission
under the Advisers Act as an investment adviser and is not
prohibited by the Advisers Act, the 1940 Act or the Rules and
Regulations under such acts from acting for the Fund under the
Management Agreement as contemplated by the Prospectus (and any
amendment or supplement thereto);
(iii) The Manager has corporate power and authority to
enter into this Agreement and the Management Agreement and this
Agreement and the Management Agreement have been duly authorized,
executed and delivered by the Manager and the Management
Agreement is a valid, legal and binding agreement of the Manager,
enforceable against the Manager in accordance with its terms,
except as enforcement of rights to indemnity and contribution
hereunder may be limited by federal or state securities laws or
principles of public policy and subject to the qualification that
the enforceability of the Manager'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;
(iv) The Management Agreement complies in all material
respects with all applicable provisions of the Advisers Act, the
1940 Act and the Advisers Act Rules and Regulations and the 1940
Act Rules and Regulations;
25
(v) Neither the execution and delivery by the Manager of
this Agreement or the Management Agreement nor the consummation
by the Manager 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
Manager or any material agreement, indenture, lease or other
instrument to which the Manager 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 Manager, nor will any such action result in any
violation of any existing material law, regulation, ruling
(assuming compliance with all applicable state securities and
Blue Sky laws), judgment, injunction, order or decree known to
such counsel after reasonable inquiry, applicable to the Fund or
any of its properties;
(vi) The description of the Manager and its business in
the Prospectus (and any amendment or supplement thereto) complies
in all material respects with all requirements of the 1933 Act,
the 1940 Act and the Rules and Regulations;
(vii) To the best knowledge of such counsel after
reasonable inquiry, other than as described or contemplated in
the Prospectus (and any amendment or supplement thereto), there
are no actions, suits or other legal or governmental proceedings
pending or threatened against the Manager or to which the Manager
or any of its property is subject which are required to be
described in the Registration Statement or Prospectus (or any
amendment or supplement to either of them);
(viii) The Manager owns, possesses or has obtained and
currently maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations as are necessary for
the Manager 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 Manager for the
performance of this Agreement or the Management Agreement by the
Manager or for the consummation by the Manager 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, such counsel has participated in the
preparation of the Registration Statement and the Prospectus,
including review and discussion of the contents thereof and
nothing has come to its attention that has caused it to believe
that the Registration Statement at the time it became effective
or the Prospectus, as of its date and as of the Closing Date or
the Option Closing Date,
26
as the case may be, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein (in the case
of a prospectus, in light of the circumstances under which they
were made) not misleading or that any amendment or supplement to
the Prospectus, as of the Closing Date or the Option Closing
Date, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading (it being understood that such
counsel need express no opinion with respect to the financial
statements and the notes thereto and the schedules and other
financial and statistical data included in the Registration
Statement or the Prospectus).
In rendering such opinion, counsel may limit such opinion to
matters involving the application of the laws of the State of
Illinois, the Delaware General Corporation Law statute and the
laws of the United States and may rely upon an opinion or
opinions, each dated the Closing Date, of other counsel retained
by the Manager as to laws of any jurisdiction other than the
United States, the State of Illinois and the Delaware General
Corporation Law statute, provided that (X) each such local
counsel is acceptable to the Representatives, (Y) such reliance
is expressly authorized by each opinion so relied upon and a copy
of each such opinion is delivered to the Representatives and is
in form and substance satisfactory to them and their counsel and
(Z) counsel shall state in his view that he believes that he and
the Underwriters are justified in relying thereon.
(d) You shall have received on the Closing Date a comfort
letter, substantially in the form heretofore approved by you, from Chapman
and Cutler, special counsel to the Fund, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, with
respect to the information presented in Appendix B to the statement of
additional information under the heading "Taxable Equivalent Yield Tables".
(e) That you shall have received on the Closing Date, an
opinion, dated the Closing Date, of Simpson Thacher & Bartlett, counsel for
the Underwriters, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, with respect to such matters
as the Underwriters may require and the Fund, the Manager 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, as
Representatives of the several Underwriters, and dated the date hereof and
the Closing Date from Ernst & Young LLP, independent certified public
accountants, substantially in the forms heretofore approved by you.
(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 Prepricing
Prospectus or any sales material shall have been issued and no proceedings
for such purpose or for the purpose of commencing an enforcement action
27
against the Fund, the Manager 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 Manager or any Underwriter or in the reasonable view of
counsel to the Underwriters, shall be threatened or contemplated by the
Commission at or prior to the Closing Date and that any request for
additional information on the part of the Commission (to be included in the
Registration Statement, the Prospectus or otherwise) be complied with to
the satisfaction of the Representatives, (ii) there shall not have been any
change in the capital stock of the Fund nor any material increase in debt
of the Fund from that set forth in the Prospectus (and any amendment or
supplement thereto) and the Fund shall not have sustained any material
liabilities or obligations, direct or contingent, other than those
reflected in the Prospectus (and any amendment or supplement thereto);
(iii) since the date of the Prospectus there shall not have been any
material, adverse change in the condition (financial or other), business,
prospects, properties, net assets or results of operations of the Fund or
the Manager; (iv) the Fund and the Manager must not have sustained any
material loss or interference with its business from any court or from
legislative or other governmental action, order or decree or from any other
occurrence not described in the Registration Statement and the Prospectus
(and any amendment or supplement to either of them); and (v) all of the
representations and warranties of the Fund and the Manager 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 Manager not contemplated by the Prospectus (and any amendment
or supplement thereto), which in your opinion, as Representatives of the
several Underwriters, would materially, adversely affect the market for the
Shares or (ii)any event or development relating to or involving the Fund,
the Manager or any officer or trustee or director of the Fund or the
Manager which makes any statement of a material fact made in the Prospectus
(or any amendment or supplement thereto) untrue or which, in the opinion of
the Fund and its counsel or the Underwriters and their counsel, requires
the making of any addition to or change in the Prospectus (or any amendment
or supplement thereto) in order to state a material fact required by the
1933 Act, the 1940 Act, the Rules and Regulations or any other law to be
stated therein or necessary in order to make the statements therein (in the
case of a prospectus, in light of the circumstances under which they were
made) not misleading, if amending or supplementing the Prospectus (or any
amendment or supplement thereto) to reflect such event or development
would, in your opinion, as Representatives of the several Underwriters,
materially, adversely affect the market for the Shares.
(i) That neither the Fund nor the Manager 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.
28
(j) That you shall have received on the Closing Date a
certificate, dated such date, of the chief administrative officer,
president, any managing director or any vice president and of the
controller or treasurer of each of the Fund and the Manager certifying that
(i) the signers have carefully examined the Registration Statement, the
Prospectus (and any amendments or supplements to either of them) and this
Agreement, (ii) the representations and warranties of the Fund (with
respect to the certificates from such Fund officers) and the
representations of the Manager (with respect to the certificates from such
officers of the Manager) 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 Manager (with respect to the certificates from such
officers of the Manager), (iv) to the knowledge of such officers after
reasonable investigation, no order suspending the effectiveness of the
Registration Statement or prohibiting the sale of any of the Shares or
having a material, adverse effect on the Fund (with respect to the
certificates from such Fund officers) or the Manager (with respect to the
certificates from such officers of the Manager) has been issued and no
proceedings for any such purpose are pending before or threatened by the
Commission or any court or other regulatory body, the NASD, any state
securities commission, any national securities exchange, any arbitrator,
any court or any other governmental, regulatory, self-regulatory or
administrative agency or any official, (v) each of the Fund (with respect
to certificates from such Fund officers) and the Manager (with respect to
certificates from such officers of the Manager) has performed and complied
with all agreements that this Agreement requires it to perform by such
Closing Date, (vi) neither the Fund (with respect to the certificate from
such officers of the Fund) nor the Manager (with respect to the certificate
from such officers of the Manager) has sustained any material loss or
interference with its business from any court or from legislative or other
governmental action, order or decree or from any other occurrence not
described in the Registration Statement and the Prospectus and any
amendment or supplement to either of them and (vii) with respect to the
certificate from such officers of the Fund, there has not been any change
in the capital stock of the Fund nor any material increase in the debt of
the Fund from that set forth in the Prospectus (and any amendment or
supplement thereto) and the Fund has not sustained any material liabilities
or obligations, direct or contingent, other than those reflected in the
Prospectus (and any amendment or supplement thereto).
(k) That the Fund and the Manager 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
Manager).
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.
29
Any certificate or document signed by any officer of the Fund or
the Manager and delivered to you, as Representatives of the Underwriters or
to Underwriters' counsel, shall be deemed a representation and warranty by
the Fund or the Manager to each Underwriter as to the statements made
therein.
The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to (i) the accuracy of and
compliance with the representations and warranties of the Fund and the
Manager contained herein on and as of the Option Closing Date as though
made on any Option Closing Date, (ii) satisfaction on and as of any Option
Closing Date of the conditions set forth in this Section 9 except that, if
any Option Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in paragraphs (b), (c), (d), (e), (f),
(j), (k) and this paragraph shall be dated the Option Closing Date in
question and the opinions and letters called for by paragraphs (b), (c),
(d) and (e) shall be revised to reflect the sale of Additional Shares and
(iii) the absence of circumstances on or prior to the Option Closing Date
which would permit termination of this Agreement pursuant to Section 11
hereof if they existed on or prior to the Closing Date.
10. Effective Date of Agreement.This Agreement shall become effective: (i)
upon the execution and delivery hereof by the parties hereto; or (ii) if, at the
time this Agreement is executed and delivered, it is necessary for the
Registration Statement or a post-effective amendment thereto to be declared
effective before the offering of the Shares may commence, when notification of
the effectiveness of the Registration Statement or such post-effective amendment
has been released by the Commission. Until such time as this Agreement shall
have become effective, it may be terminated by the Fund by notifying you or by
you, as Representatives of the several Underwriters, by notifying the Fund.
If any one or more of the Underwriters shall fail or refuse to
purchase Firm Shares which it or they have agreed to purchase hereunder and the
aggregate number of Firm Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Firm Shares, each non-defaulting Underwriter
shall be obligated, severally, in the proportion which the aggregate number of
Firm Shares set forth opposite its name in Schedule I hereto bears to the
aggregate number of Firm Shares set forth opposite the names of all
non-defaulting Underwriters or in such other proportion as you may specify in
accordance with of the Salomon Smith Barney Master Agreement Among Underwriters,
to purchase Firm Shares which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase. If any Underwriter or Underwriters shall fail
or refuse to purchase Firm Shares and the aggregate number of Firm Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Firm Shares and arrangements satisfactory to you and the Fund for the
purchase of such Firm Shares by one or more non-defaulting Underwriters or other
party or parties approved by you and the Fund are not made within 36 hours after
such default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Fund. In any such case which does not result
in termination of this Agreement, either you or the Fund shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the
30
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any such default of any such
Underwriter under this Agreement. The term "Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Fund,
purchases Firm Shares which a defaulting Underwriter agreed, but failed or
refused, to purchase.
Any notice under this Section 10 may be made by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of the
Underwriters to the Fund or the Manager, by notice given to the Fund or the
Manager prior to delivery of and payment for the Firm Shares and any Additional
Shares, as the case may be, if at any time prior to such time (i) trading in the
Fund's Common Shares shall have been suspended by the Commission or the AMEX or
trading in securities generally on the NYSE or the AMEX shall have been
suspended or limited or minimum prices for trading in securities generally shall
have been established on either of such Exchanges, (ii) a commercial banking
moratorium shall have been declared by either federal or New York state
authorities, or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets in the United
States is such as to make it, in your sole judgment, impracticable or
inadvisable to proceed with the offering or delivery of the Shares as
contemplated by the Prospectus (exclusive of any supplement thereto). Notice of
such termination may be given to the Fund or the Manager by telegram, telecopy
or telephone and shall be subsequently confirmed by letter.
12. Expenses. The Fund agrees to pay the following costs and expenses and
all other costs and expenses incident to the performance by the Fund of its
obligations hereunder: (a) the preparation, printing or reproduction, filing
(including, without limitation, the filing fees prescribed by the 1933 Act, the
1940 Act and the Rules and Regulations) and distribution of the Registration
Statement (including exhibits thereto), the Prospectus, each Prepricing
Prospectus and the 1940 Act Notification and all amendments or supplements to
any of them, (b) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of such copies of
the Registration Statement, the Prospectus, each Prepricing Prospectus, any
sales material and all amendments or supplements to any of them as may be
reasonably requested for use in connection with the offering and sale of the
Shares, (c) the preparation, printing, authentication, issuance and delivery of
certificates for the Shares, including any stamp taxes and transfer agent and
registrar fees payable in connection with the original issuance and sale of such
Shares, (d) the registrations or qualifications of the Shares for offer and sale
under the securities or Blue Sky laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriters relating to the preparation, printing or
reproduction and delivery of the preliminary and supplemental Blue Sky Memoranda
and such registration and qualification), (e) the fees and expenses of the
Fund's independent accountants, counsel for the Fund and of the transfer agent,
(f) the expenses of delivery to the Underwriters and dealers (including postage,
air freight and the
31
cost of counting and packaging) of copies of the Prospectus, the Prepricing
Prospectus, any sales material and all amendments or supplements to the
Prospectus as may be requested for use in connection with the offering and sale
of the Shares, (g) the printing (or reproduction) and delivery of this
Agreement, any dealer agreements, the preliminary and supplemental Blue Sky
Memoranda and all other company-authorized agreements or other documents printed
(or reproduced) and delivered in connection with the offering of the Shares, (h)
the filing fees and the fees and expenses of counsel for the Underwriters in
connection with any filings required to be made with the NASD and incurred with
respect to the review of the offering of the Shares by the NASD and (i) the
registration of the Shares under the 1934 Act and the listing of the Shares on
the AMEX.
Notwithstanding the foregoing, in the event that the sale of the Firm
Shares is not consummated pursuant to Section 2 hereof, the Manager will pay the
costs and expenses of the Fund set forth above in this Section 12 (a) through
(i), and reimbursements of Underwriter expenses in connection with the offering
shall be made in accordance with Section 5(k) hereof.
13. Information Furnished by the Underwriters. The names of the
underwriters and numbers of Shares listed opposite such names in the first
paragraph under the caption "Underwriting" in the Prospectus, as well as, under
the same caption, the last sentence of the second paragraph, the first sentence
of the eleventh paragraph, the first sentence of the thirteenth paragraph and
the eighteenth paragraph constitute the only information relating to any
Underwriter furnished to the Fund in writing by or on behalf of the Underwriters
through you as such information is referred to herein, expressly for use in the
Prospectus.
14. Miscellaneous. Except as otherwise provided in Sections 5, 10 and 11
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (a) if to the Fund or the Manager, c/o Nuveen
Investments at 333 West Wacker Drive, Chicago, Illinois 60606, Attention: Alan
G. Berkshire or (b) if to you, as Representatives of the Underwriters, at the
office of Salomon Smith Barney Inc. at 388 Greenwich Street, New York, New York
10013, Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Fund, the Manager, their trustees, directors and officers and
the other controlling persons referred to in Section 8 hereof and their
respective successors and assigns to the extent provided herein and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" or the term "successors and assigns" as used in
this Agreement shall include a purchaser from any Underwriter of any of the
Shares in his status as such purchaser.
A copy of the Declaration of Trust of the Fund is on file with the
Secretary of State of The Commonwealth of Massachusetts. Consistent with the
Fund's Declaration of Trust, notice is hereby given and the parties hereto agree
that this Agreement has been executed on behalf of the Fund by the Trustee(s) or
officer(s) of the Fund in such capacity and not individually by them and that
the obligations of the Fund under this Agreement are not binding upon any of
them or the shareholders of the Fund individually but are binding only upon the
assets and property of the Fund.
32
15. Applicable Law; Counterparts.This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
33
Please confirm that the foregoing correctly sets forth the agreement among
the Fund and the Manager and the several Underwriters.
Very truly yours,
NUVEEN INSURED TAX-FREE ADVANTAGE
MUNICIPAL FUND
By:
------------------------------------
Title: Chief Administrative Officer
NUVEEN ADVISORY CORP.
By:
------------------------------------
Title: Managing Director
34
Confirmed as of the date
first above written on
behalf of themselves and
the other several
Underwriters named in
Schedule I hereto.
By: Salomon Smith Barney Inc.
Nuveen Investments
A.G. Edwards & Sons, Inc.
Prudential Securities Incorporated
H&R Block Financial Advisors, Inc.
Fahnestock & Co. Inc.
Janney Montgomery Scott LLC
Legg Mason Wood Walker, Incorporated
Quick & Reilly, Inc. A FleetBoston Financial Company
Raymond James & Associates, Inc.
RBC Dain Rauscher, Inc.
Ryan Beck & Co.
SunTrust Capital Markets, Inc.
Wachovia Securities, Inc.
Wedbush Morgan Securities Inc.
AS REPRESENTATIVES OF THE SEVERAL UNDERWRITERS
By: SALOMON SMITH BARNEY INC.
By:
---------------------------------
Title:
35
SCHEDULE I
NAME OF UNDERWRITERS NUMBER OF COMMON SHARES
- ------------------------- -----------------------
Salomon Smith Barney Inc.
Nuveen Investments
Total