_________ Shares
NUVEEN INSURED MASSACHUSETTS 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
Advest, Inc.
Fahnestock & Co. Inc.
Raymond James & Associates, Inc.
RBC Dain Rauscher, Inc.
Ryan Beck & Co.
Wachovia 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 Massachusetts 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. 333-100352 and
811-21216) under the 1933 Act and the 1940 Act and may pursuant to the Rules and
Regulations prepare and file an additional registration statement relating to a
portion of the Shares pursuant to Rule 462(b) of the 1933 Act Rules and
Regulations (a "462(b) Registration Statement") (collectively, the "registration
statement"), including a prospectus (including any statement of additional
information) relating to the Shares and a notification of registration of the
Fund as an investment company under the 1940 Act on Form N-8A (the "1940 Act
Notification"). The term "Registration Statement" as used in this Agreement
means the registration statement (including all financial schedules and
exhibits), as amended at the time it becomes effective under the 1933 Act or, if
the registration statement became effective under the 1933 Act prior to the
execution of this Agreement, as amended or supplemented at the time it became
effective prior to the execution of this Agreement, and includes any information
deemed to be included by Rule 430A under the 1933 Act Rules and Regulations. If
it is contemplated, at the time this Agreement is executed, that a
post-effective amendment to the registration statement will be filed under the
1933 Act and must be declared effective before the offering of the Shares may
commence, the term "Registration Statement" as used in this Agreement means the
registration statement as amended by said post-effective amendment. For the
avoidance of doubt, if the Fund has filed a 462(b) Registration Statement, the
term "Registration Statement" as used in this Agreement shall include such
462(b) Registration Statement. The term "Prospectus" as used in this Agreement
means the prospectus (including the statement of additional information) in the
form included in the Registration Statement or, if the prospectus (including the
statement of additional information) included in the Registration Statement
omits information in reliance on Rule 430A and such information is included in a
prospectus (including the statement of additional information) filed with the
Commission pursuant to Rule 497(h) under the 1933 Act Rules and Regulations, the
term "Prospectus" as used in this Agreement means the prospectus (including the
statement of additional information) in the form included in the Registration
Statement as supplemented by the addition of the information contained in the
prospectus (including the statement of additional information) filed with the
Commission pursuant to Rule 497(h). The term "Prepricing Prospectus" as used in
this Agreement means the prospectus (including the statement of additional
information) subject to completion in the form included in the registration
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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 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.
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(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
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
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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
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
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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.
(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,
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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.
(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.
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(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 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.
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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 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.
9
(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 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
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(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, 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
11
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.
(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.
12
(s) The Fund is duly registered under the 1940 Act as a
closed-end, non-diversified management investment company and the 1940
Act Notification has been duly filed with the Commission and, at the
time of filing thereof and 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.
(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
13
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 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
14
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 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.
15
(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) 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.
16
(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 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
17
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 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 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
18
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 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
19
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 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;
20
(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 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
21
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 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;
22
(xiii) The Fund is duly registered with the Commission under
the 1940 Act as a closed-end, non-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 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
23
(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 and Edwards & Angell 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 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
24
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;
(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
25
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, 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
26
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) (i) You shall have received on the Closing Date an opinion of
Edwards & Angell LLP, special Commonwealth of Massachusetts counsel to
the Fund, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
The statements contained in the Prospectus under the
headings "Risks - Concentration Risk" and "Tax Matters -
Massachusetts Tax Matters" and in Appendix D to the statement of
additional information under the headings "Factors Pertaining to
Massachusetts" and "Massachusetts Tax Matters", to the extent
that such statements constitute matters of law or legal
conclusions, provide a fair and accurate summary of such law or
conclusions. Such statements are based on current law and special
counsel's understanding of the Fund's proposed operations, as
disclosed in the Prospectus.
Such counsel shall also state that although special counsel does
not pass upon or assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (other than to the extent set
forth above), and has not made any independent check or verification
thereof, no facts have come to the attention of such special counsel
which would lead it to believe that the material contained under the
headings "Risks - Concentration Risk" and "Tax Matters - Massachusetts
Tax Matters" and in Appendix D to the statement of additional
information under the headings "Factors Pertaining to Massachusetts"
and "Massachusetts Tax Matters" in the Registration Statement, at the
time the Registration Statement became effective, or in 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 the material contained under such headings in 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
27
statements therein, in light of the circumstances under which they were
made, not misleading.
In rendering such opinion, such special counsel may rely as to
matters of fact, to the extent such special counsel deems proper, on
certificates of responsible officers of the Fund and of the Manager,
and of public officials.
(ii) 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 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
28
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.
(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
29
(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.
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.
30
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 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
31
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 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
32
"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.
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 MASSACHUSETTS
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
Advest, Inc.
Fahnestock & Co. Inc.
Raymond James & Associates, Inc.
RBC Dain Rauscher, Inc.
Ryan Beck & Co.
Wachovia Securities, Inc.
AS REPRESENTATIVES OF THE SEVERAL UNDERWRITERS
By: SALOMON SMITH BARNEY INC.
By:
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Title:
35
SCHEDULE I
NAME OF UNDERWRITERS NUMBER OF COMMON SHARES
Salomon Smith Barney Inc.
Nuveen Investments
Total