<PAGE>
As filed with the Securities and Exchange Commission on November 1, 1999
================================================================================
1933 Act File No. 333-86619
1940 Act File No. 811-9571
U. S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form N-2
(Check appropriate box or boxes)
[X] REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
[ ] Pre-Effective Amendment No. __________
[X] Post-Effective Amendment No. 1
and
[X] REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940
[X] Amendment No. 4
Nuveen Senior Income Fund
Exact Name of Registrant as Specified in Declaration of Trust
333 West Wacker Drive, Chicago, Illinois 60606
Address of Principal Executive Offices (Number, Street, City, State, Zip Code)
(800) 257-8787
Registrant's Telephone Number, including Area Code
Gifford R. Zimmerman
Vice President and Secretary
333 W. Wacker Drive
Chicago, Illinois 60606
Name and Address (Number, Street, City, State, Zip Code) of Agent for Service
Copies of Communications to:
Janet D. Olsen Thomas A. Hale Eric F. Fess
Bell, Boyd & Lloyd Skadden, Arps, Slate, Chapman & Cutler
70 W. Madison St. Meagher & Flom (Illinois) 111 W. Monroe
Chicago, IL 60602 333 W. Wacker Drive Chicago, IL 60603
Chicago, IL 60606
Approximate Date of Proposed Public Offering:
As soon as practicable after the effective date of this Registration Statement
_________________
If any of the securities being registered on this form are offered on a
delayed or continuous basis in reliance on Rule 415 under the Securities Act of
1933, other than securities offered in connection with a dividend reinvestment
plan, check the following box. [ ]
It is proposed that this filing will become effective (check appropriate
box)
[ ] when declared effective pursuant to section 8(c)
[X] immediately upon filing pursuant to paragraph (d)
[ ] This form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933 and the
Securities Act registration statement number of the earlier effective
registration statement for the same offering is ___________.
_________________
CALCULATION OF REGISTRATION FEE UNDER THE SECURITIES ACT OF 1933
================================================================================
<TABLE>
<CAPTION>
Proposed Maximum
Title of Securities Being Amount Proposed Maximum Offering Aggregate Offering Amount of
Registered Being Registered Price Per Unit Price (1) Registration Fee (2)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares, $.01 per value 32,000,000 Shares $10.00 $320,000,000 $88,960
====================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Previously paid.
================================================================================
<PAGE>
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 is filed solely for the purpose of
modifying the Exchange Traded Fund Custody Agreement filed herewith as exhibit
j, the Shareholder Transfer Agency Agreement filed herewith as exhibit k.1, the
Investment Management Agreement filed herewith as exhibit g and the Underwriting
Agreement filed herewith as exhibit h.1, and filing the consent as exhibit n and
the powers of attorney as exhibits s.1 and s.2. The Prospectus and Statement of
Additional Information previously filed by Registrant remain unchanged.
<PAGE>
PART C - OTHER INFORMATION
Item 24: Financial Statements and Exhibits
1. Financial Statements:
Financial Statements indicating that the Registrant has met the net worth
requirements of Section 14(a) of the 1940 Act were filed in pre-effective
amendment no. 2 to the Fund's registration statement (333-86619).
2. Exhibits:
a. Declaration of Trust dated August 13, 1999. Filed as Exhibit a to
Registrant's registration statement on Form N-2 (File No. 333-86619) and
incorporated herein by reference.
b. By-laws of Registrant. Filed as Exhibit b to Registrant's registration
statement on Form N-2 (File No. 333-86619) and incorporated herein by
reference.
c. None.
d. Form of Share Certificate. Filed as Exhibit d to pre-effective amendment
no. 2 to Registrant's registration statement on Form N-2 (File No. 333-
86619) and incorporated herein by reference.
e. Terms and Conditions of the Dividend Reinvestment Plan. Filed as Exhibit e
to pre-effective amendment no. 2 to Registrant's registration statement on
Form N-2 (File No. 333-86619) and incorporated herein by reference.
f. None.
g. Investment Management Agreement between Registrant and Nuveen Senior Loan
Asset Management Inc.
h.1 Underwriting Agreement.
h.2 Form of PaineWebber Amended and Restated Master Selected Dealer Agreement.
Filed as Exhibit h.2 to pre-effective amendment no. 1 to Registrant's
registration statement on Form N-2 (File No. 333-86619) and incorporated
herein by reference.
II-1
<PAGE>
h.3 Form of Nuveen Master Selected Dealer Agreement. Filed as Exhibit h.3 to
pre-effective amendment no. 1 to Registrant's registration statement on
Form N-2 (File No. 333-86619) and incorporated herein by reference.
h.4 Form of Amended and Restated Master Agreement among Underwriters. Filed as
Exhibit h.4 to pre-effective amendment no. 1 to Registrant's registration
statement on Form N-2 (File No. 333-86619) and incorporated herein by
reference.
i. Nuveen Open-End and Closed-End Funds Deferred Compensation Plan for
Independent Directors and Trustees. Filed as Exhibit i to pre-effective
amendment no. 2 to Registrant's registration statement on Form N-2 (File
No. 333-86619) and incorporated herein by reference.
j. Exchange Traded Fund Custody Agreement between Registrant and Chase Bank of
Texas, National Association.
k.1 Shareholder Transfer Agency Agreement between Registrant and The Chase
Manhattan Bank.
k.2 Form of Expense Reimbursement Agreement between Registrant and Nuveen
Senior Loan Asset Management Inc. Filed as Exhibit k.2 to pre-effective
amendment no. 1 to Registrant's registration statement on Form N-2 (File
No. 333-86619) and incorporated herein by reference.
l.1 Opinion and consent of Bell, Boyd & Lloyd. Filed as Exhibit l.1 to pre-
effective amendment no. 2 to Registrant's registration statement on Form N-
2 (File No. 333-86619) and incorporated herein by reference.
l.2 Opinion and consent of Bingham Dana LLP. Filed as Exhibit 1.2 to pre-
effective amendment no. 2 to Registrant's registration statement on Form N-
2 (File No. 333-86619) and incorporated herein by reference.
m. None.
n. Consent of KPMG LLP.
o. None.
p. Subscription Agreement of Nuveen Senior Loan Asset Management Inc. dated
October 12, 1999. Filed as Exhibit p to pre-effective amendment no. 2 to
Registrant's registration statement on Form N-2 (File No. 333-86619) and
incorporated herein by reference.
q. None.
r. None.
II-2
<PAGE>
s.1 Power of Attorney of Timothy R. Schwertfeger.
s.2 Powers of Attorney of Trustees (other than Timothy R. Schwertfeger).
Item 25: Marketing Arrangements
See Sections 1, 4(a)(xvi), 4(b)(viii), 5 and 9 of the Underwriting
Agreement filed as Exhibit h.1 to this registration statement; Sections 2, 3(b),
3(c), 3(d) and 3(f) of the PaineWebber Amended and Restated Master Selected
Dealer Agreement previously filed as Exhibit h.2 to the registration statement;
Section 3 of the Nuveen Master Selected Dealer Agreement previously filed as
Exhibit h.3 to the registration statement; and Sections 1, 4, 7 and 11 of the
Amended and Restated Master Agreement filed as Exhibit h.4 to the registration
statement.
Item 26: Other Expenses of Issuance and Distribution
<TABLE>
<S> <C>
Securities and Exchange Commission fees $ 88,960
National Association of Securities Dealers, Inc. fees 30,500
Printing and engraving expenses 400,000
Legal Fees 110,000
New York Stock Exchange listing fees 158,100
Accounting expenses 2,500
Blue Sky filing fees and expenses --
Transfer agent fees --
Miscellaneous expenses 7,440
--------
Total 797,500
========
</TABLE>
Expenses may be reduced pursuant to the agreement of John Nuveen & Co.
Incorporated to pay (i) all Registrant's organizational expenses and (ii)
offering costs (other than the sales load) that exceed $.01 per Common Share.
Item 27: Persons Controlled by or under Common Control with Registrant
Not applicable.
Item 28: Number of Holders of Securities
At October 26, 1999
<TABLE>
<CAPTION>
Number of
Title of Class Record Holder
----------------- -------------------
<S> <C>
Common Shares, $.01 par value 1
</TABLE>
Item 29: Indemnification
II-3
<PAGE>
Section 4 of Article XII of the Registrant's Declaration of Trust provides
as follows:
Subject to the exceptions and limitations contained in this Section 4,
every person who is, or has been, a Trustee, officer, employee or agent of the
Trust, including persons who serve at the request of the Trust as directors,
trustees, officers, employees or agents of another organization in which the
Trust has an interest as a shareholder, creditor or otherwise (hereinafter
referred to as a "Covered Person"), shall be indemnified by the Trust to the
fullest extent permitted by law against liability and against all expenses
reasonably incurred or paid by him in connection with any claim, action, suit or
proceeding in which he becomes involved as a party or otherwise by virtue of his
being or having been such a Trustee, director, officer, employee or agent and
against amounts paid or incurred by him in settlement thereof.
No indemnification shall be provided hereunder to a Covered Person:
(a) against any liability to the Trust or its Shareholders by reason of a final
adjudication by the court or other body before which the proceeding was
brought that he engaged in willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of his office;
(b) with respect to any matter as to which he shall have been finally
adjudicated not to have acted in good faith in the reasonable belief that
his action was in the best interests of the Trust; or
(c) in the event of a settlement or other disposition not involving a final
adjudication (as provided in paragraph (a) or (b)) and resulting in a
payment by a Covered Person, unless there has been either a determination
that such Covered Person did not engage in willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the
conduct of his office by the court or other body approving the settlement
or other disposition or a reasonable determination, based on a review of
readily available facts (as opposed to a full trial-type inquiry), that he
did not engage in such conduct:
(i) by a vote of a majority of the Disinterested Trustees acting on
the matter (provided that a majority of the Disinterested Trustees
then in office act on the matter); or
(ii) by written opinion of independent legal counsel.
The rights of indemnification herein provided may be insured against by
policies maintained by the Trust, shall be severable, shall not affect any other
rights to which any Covered Person may now or hereafter be entitled, shall
continue as to a person who has ceased to be such a Covered Person and shall
inure to the benefit of the heirs, executors and administrators of such a
person. Nothing contained herein shall affect any rights to indemnification to
which Trust personnel other than Covered Persons may be entitled by contract or
otherwise under law.
II-4
<PAGE>
Expenses of preparation and presentation of a defense to any claim, action,
suit or proceeding subject to a claim for indemnification under this Section 4
shall be advanced by the Trust prior to final disposition thereof upon receipt
of an undertaking by or on behalf of the recipient to repay such amount if it is
ultimately determined that he is not entitled to indemnification under this
Section 4, provided that either:
(a) such undertaking is secured by a surety bond or some other appropriate
security or the Trust shall be insured against losses arising out of any
such advances; or
(b) a majority of the Disinterested Trustees acting on the matter
(provided that a majority of the Disinterested Trustees then in office act
on the matter) or independent legal counsel in a written opinion shall
determine, based upon a review of the readily available facts (as opposed
to a full trial-type inquiry), that there is reason to believe that the
recipient ultimately will be found entitled to indemnification.
As used in this Section 4, a "Disinterested Trustee" is one (x) who is not
an Interested Person of the Trust (including, as such Disinterested Trustee,
anyone who has been exempted from being an Interested Person by any rule,
regulation or order of the Commission), and (y) against whom none of such
actions, suits or other proceedings or another action, suit or other proceeding
on the same or similar grounds is then or has been pending.
As used in this Section 4, the words "claim," "action," "suit" or
"proceeding" shall apply to all claims, actions, suits, proceedings (civil,
criminal, administrative or other, including appeals), actual or threatened; and
the words "liability" and "expenses" shall include without limitation,
attorneys' fees, costs, judgments, amounts paid in settlement, fines, penalties
and other liabilities.
The trustees and officers of the Registrant are covered by Investment Trust
Errors and Omission policies in the aggregate amount of $20,000,000 (with a
maximum deductible of $500,000) against liability and expenses of claims of
wrongful acts arising out of their position with the Registrant, except for
matters which involve willful acts, bad faith, gross negligence and willful
disregard of duty (i.e., where the insured did not act in good faith for a
purpose he or she reasonably believed to be in the best interest of Registrant
or where he or she had reasonable cause to believe this conduct was unlawful).
Section 8 of the Underwriting Agreement filed as Exhibit h to this
Registration Statement provides for each of the parties thereto, including the
Registrant and the Underwriters, to indemnify the others, their trustees,
directors, certain of their officers, trustees, directors and persons who
control them against certain liabilities in connection with the offering
described herein, including liabilities under the federal securities laws.
Item 30: Business and Other Connections of Investment Adviser
As of the date hereof, Nuveen Senior Loan Asset Management Inc. acts as
investment adviser for Nuveen Senior Income Fund and Nuveen Floating Rate Fund.
Nuveen Senior Loan Asset
II-5
<PAGE>
Management Inc. has no other clients or business at the present time. For a
description of other business, profession, vocation or employment of a
substantial nature in which any director or officer of the investment adviser
has engaged during the last two years for his account or in the capacity of
director, officer, employee, partner or trustee, see the descriptions under
"Management of the Fund" in Part A of this Registration Statement.
Item 31: Location of Accounts and Records
Nuveen Senior Loan Asset Management Inc., 333 West Wacker Drive, Chicago,
Illinois 60606, maintains the Declaration of Trust, By-Laws, minutes of trustees
and shareholders meetings and contracts of the Registrant and all advisery
material of the investment adviser.
Chase Bank of Texas, National Association, 600 Travis Street, Houston,
Texas 77002, is the Fund's custodian and will maintain all general and
subsidiary ledgers, journals, trial balances, records of all portfolio purchases
and sales, and all other required records not maintained by Nuveen Senior Loan
Asset Management Inc.
The Chase Manhattan Bank, 4 New York Plaza, New York, New York 10004-2413
maintains all the required records in its capacity as transfer and dividend
paying agent for the Registrant.
Item 32: Management Services
Not applicable.
Item 33: Undertakings
1. Registrant undertakes to suspend the offering of its shares until it
amends its prospectus if (1) subsequent to the effective date of its
Registration Statement, the net asset value declines more than 10 percent from
its net asset value as of the effective date of the Registration Statement, or
(2) the net asset value increases to an amount greater than its net proceeds as
stated in the prospectus.
2. Not applicable.
3. Not applicable.
4. Not applicable.
5. The Registrant undertakes that:
a. For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of a registration statement in reliance upon Rule 430A and contained in the
form of prospectus filed by the Registrant under Rule 497(h) under the
Securities Act of 1933 shall be deemed to be part of the Registration
Statement as of the time it was declared effective.
II-6
<PAGE>
b. For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of the securities at that
time shall be deemed to be the initial bona fide offering thereof.
6. The Registrant undertakes to send by first class mail or other means
designed to ensure equally prompt delivery within two business days of receipt
of a written or oral request, any Statement of Additional Information.
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, the Registrant has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in this City of Chicago, and State of Illinois, on the 1st day of
November, 1999.
NUVEEN SENIOR
INCOME FUND
/s/ Gifford R. Zimmerman
----------------------------------------
Gifford R. Zimmerman, Vice President and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Stephen D. Foy Vice President and Controller November 1, 1999
- -------------------------- (Principal Financial and
Stephen D. Foy Accounting Officer)
Timothy R. Schwertfeger Chairman of the Board and By: /s/ Gifford R. Zimmerman
Trustee (Principal Executive --------------------------
Officer) Gifford R. Zimmerman
Attorney-In-Fact
November 1, 1999
James E. Bacon Trustee
Jack B. Evans Trustee
William L. Kissick Trustee
Thomas E. Leafstrand Trustee
Shiela W. Wellington Trustee
</TABLE>
Original powers of attorney authorizing Alan G. Berkshire and Gifford R.
Zimmerman, among others, to execute this Registration Statement, and Amendments
to this Registration Statement, for each of the trustees of Registrant on whose
behalf this Registration Statement is filed, have been executed and filed as an
exhibit.
<PAGE>
INDEX TO EXHIBITS
a. Declaration of Trust dated August 13, 1999.*
b. By-laws of Registrant.*
c. None.
d. Form of Share Certificate.*
e. Terms and Conditions of the Dividend Reinvestment Plan.*
f. None.
g. Investment Management Agreement between Registrant and Nuveen Senior Loan
Asset Management Inc.
h.1 Underwriting Agreement.
h.2 Form of PaineWebber Amended and Restated Master Selected Dealer Agreement.*
h.3 Form of Nuveen Master Selected Dealer Agreement.*
h.4 Form of Amended and Restated Master Agreement among Underwriters.*
i. Nuveen Open-End and Closed-End Funds Deferred Compensation Plan for
Independent Directors and Trustees.*
j. Exchange Traded Fund Custody Agreement between Registrant and Chase Bank of
Texas.
k.1 Shareholder Transfer Agency Agreement between Registrant and The Chase
Manhattan Bank.
k.2 Form of Expense Reimbursement Agreement between Registrant and Nuveen
Senior Loan Asset Management Inc.*
l.1 Opinion and consent of Bell, Boyd & Lloyd.*
l.2 Opinion and consent of Bingham Dana LLP.*
m. None.
n. Consent of KPMG LLP.
o. None.
p. Subscription Agreement of Nuveen Senior Loan Asset Management Inc. dated
October 12, 1999.*
q. None.
r. None.
s.1 Power of Attorney of Timothy R. Schwertfeger.
s.2 Powers of Attorney of Trustees (other than Timothy R. Schwertfeger).
___________________
* Incorporated by reference - see Item 24.
<PAGE>
Management Agreement
Between
Nuveen Senior Income Fund
and
Nuveen Senior Loan Asset Management Inc.
Nuveen Senior Income Fund, a Massachusetts business trust registered under
the Investment Company Act of 1940 ("1940 Act") as a closed-end management
investment company ("Fund"), hereby appoints Nuveen Senior Loan Asset Management
Inc., a Delaware corporation registered under the Investment Advisers Act of
1940 as an investment adviser, of Chicago, Illinois ("Manager"), to furnish
investment advisory and management services and certain administrative services
with respect to the assets represented by the shares of beneficial interest
issued by the Fund. Fund and Manager hereby agree that:
1. Investment Management Services. Manager shall manage the
investment operations of the Fund, subject to the terms of this Agreement
and to the supervision and control of the Fund's Board of Trustees
("Trustees"). Manager agrees to perform, or arrange for the performance
of, the following services with respect to the Fund:
(a) obtain and evaluate such information relating to economies,
industries, businesses, securities and commodities markets, and
individual securities, commodities and indices as it may deem
necessary or useful in discharging its responsibilities hereunder;
(b) formulate and maintain a continuous investment program in
a manner consistent with and subject to (i) the Fund's declaration of
trust and by-laws; (ii) the Fund's investment objectives, policies,
and restrictions as set forth in written documents furnished by the
Fund to Manager; (iii) all securities, commodities, and tax laws and
regulations applicable to the Fund; and (iv) any other written limits
or directions furnished by the Trustees to Manager;
(c) unless otherwise directed by the Trustees, to determine
from time to time securities, commodities, interests or other
investments to be purchased, sold, retained or lent by the Fund, and
to implement those decisions, including the selection of entities with
or through which such purchases, sales or loans are to be effected;
<PAGE>
(d) use reasonable efforts to manage the Fund so that it will
qualify as a regulated investment company under subchapter M of the
Internal Revenue Code of 1986, as amended;
(e) make recommendations as to the manner in which voting rights,
rights to consent to Fund action, and any other rights pertaining to
the Fund shall be exercised;
(f) make available to the Fund promptly upon request all of the
Fund's records and ledgers and any reports or information reasonably
requested by the Fund;
(g) the extent required by law, to furnish to regulatory
authorities any information or reports relating to the services
provided pursuant to this Agreement ;
(h) monitor the provisions of the loan agreements and any
agreements with respect to participations and assignments and be
responsible for recordkeeping with respect to senior loans in the
Fund's portfolio;
(i) prepare all reports required to be sent to holders of shares
of the Fund ("Shareholders"), and arrange for the printing and
dissemination of such reports to Shareholders;
(j) arrange for the dissemination to shareholders of the Fund's
proxy materials and oversee the tabulation of proxies;
(k) negotiate the terms and conditions under which custodian
services will be provided to the Fund and the fees to be paid by the
Fund to its custodian (which may or may not be an affiliate of the
Fund's investment adviser), in connection therewith;
(l) negotiate the terms and conditions under which dividend
disbursing services will be provided to the Fund, and the fees to be
paid by the Fund in connection therewith and review the provision of
dividend disbursing services to the Fund;
(m) determine the amounts available for distribution as dividends
and distributions to be paid by the Fund to its Shareholders; prepare
and arrange for the printing of dividend notices to Shareholders; and
provide the Fund's dividend disbursing agent and custodian with such
information as is required for such parties to effect the payment of
dividends and distributions and to implement the Fund's dividend
reinvestment plan;
-2-
<PAGE>
(n) make such reports and recommendations to the Board as the
Board reasonably requests or deems appropriate; and
(o) provide shareholder services to holders or potential holders
of the Fund's securities including, but not limited to, shareholder
requests for information.
Except as otherwise instructed from time to time by the Trustees, with
respect to execution of transactions for the Fund, Manager shall place, or
arrange for the placement of, all orders for purchases, sales, or loans
with issuers, brokers, dealers or other counterparts or agents selected by
Manager. In connection with the selection of all such parties for the
placement of all such orders, Manager shall attempt to obtain most
favorable execution and price, but may nevertheless in its sole discretion
as a secondary factor, purchase and sell portfolio securities from and to
brokers and dealers who provide Manager with statistical, research and
other information, analysis, advice, and similar services. In recognition
of such services or brokerage services provided by a broker or dealer,
Manager is hereby authorized to pay such broker or dealer a commission or
spread in excess of that which might be charged by another broker or dealer
for the same transaction if the Manager determines in good faith that the
commission or spread is reasonable in relation to the value of the services
so provided.
The Fund hereby authorizes any entity or person associated with
Manager that is a member of a national securities exchange to effect any
transaction on the exchange for the account of a Fund to the extent
permitted by and in accordance with Section 11(a) of the Securities
Exchange Act or 1934 and Rule 11a2-2(T) thereunder. The Fund hereby
consents to the retention by such entity or person of compensation for such
transactions in accordance with Rule 11a-2-2(T)(a)(iv).
Manager may, where it deems to be advisable, aggregate orders for its
other customers together with any securities of the same type to be sold or
purchased for the Fund in order to obtain best execution or lower brokerage
commissions. In such event, Manager shall allocate the shares so purchased
or sold, as well as the expenses incurred in the transaction, in a manner
it considers to be equitable and fair and consistent with its fiduciary
obligations to the Fund and Manager's other customers.
Manager shall for all purposes be deemed to be an independent
contractor and not an agent of the Fund and shall, unless otherwise
expressly provided or authorized, have no authority to act for or represent
the Fund in any way.
2. Administrative Services. Subject to the terms of this Agreement
and to the supervision and control of the Trustees, Manager shall provide
to the Fund facilities,
-3-
<PAGE>
equipment, statistical and research data, clerical, accounting and
bookkeeping services, internal auditing and legal services, and personnel
to carry out all management services required for operation of the business
and affairs of the Fund other than those services to be performed by the
Fund's Underwriter pursuant to an Underwriting Agreement, those services to
be performed by the Fund's Custodian pursuant to a Custody Agreement, those
services to be performed by the Fund's Transfer Agent pursuant to a
Transfer Agency Agreement, those services to be provided pursuant to a Fund
Accounting Agreement and those services normally performed by the Fund's
counsel and auditors.
3. Use of Affiliated Companies and Subcontractors. In connection
with the services to be provided by Manager under this Agreement, Manager
may, to the extent it deems appropriate, and subject to compliance with the
requirements of applicable laws and regulations, make use of (i) its
affiliated companies and their directors, trustees, officers, and employees
and (ii) subcontractors selected by Manager, provided that Manager shall
supervise and remain fully responsible for the services of all such third
parties in accordance with and to the extent provided by this Agreement.
All costs and expenses associated with services provided by any such third
parties shall be borne by Manager or such parties.
4. Expenses Borne by the Fund. Except to the extent expressly
assumed by Manager herein or under a separate agreement between the Fund
and Manager and except to the extent required by law to be paid by Manager,
Manager shall not be obligated to pay any costs or expenses incidental to
the organization, operations or business of the Fund. Without limitation,
costs and expenses for which the Manager shall have no obligation shall
include but not be limited to:
(a) all charges of depositories, custodians and other agencies
for the safekeeping and servicing of the Fund's cash, securities, and
other property;
(b) all charges for equipment or services used for obtaining
price quotations or for communication between Manager or Fund and the
custodian, transfer agent or any other agent selected by the Fund;
(c) all charges for and accounting services provided to the
Fund by Manager, or any other provider of such services;
(d) all charges for services of the Fund's independent
auditors and for services to the Fund by legal counsel;
-4-
<PAGE>
(e) all compensation of Trustees, other than those affiliated
with Manager, all expenses incurred in connection with their services
to the Fund, and all expenses of meetings of the Trustees or
committees thereof;
(f) all expenses incidental to holding meetings of Shareholders,
including printing and of supplying each record-date Shareholder with
notice and proxy solicitation material, and all other proxy
solicitation expense;
(g) all expenses of printing of annual or more frequent revisions
of the Fund's prospectus;
(h) all expenses related to preparing, printing and transmitting
certificates representing Fund shares;
(i) all expenses of bond and insurance coverage required by law
or deemed advisable by the Trustees;
(j) all brokers' commissions and other normal charges incident to
the purchase, sale, or lending of portfolio securities;
(k) all taxes and governmental fees payable to Federal, state or
other governmental agencies, domestic or foreign, including all stamp
or other transfer taxes;
(l) all expenses of registering and maintaining the registration
of the Fund under the 1940 Act and, to the extent no exemption is
available, expenses of registering Fund's shares under the 1933 Act,
of qualifying and maintaining qualification of the Fund and of the
Fund's shares for sale under securities laws of various states or
other jurisdictions and of registration and qualification of the Fund
under all other laws applicable to the Fund or its business
activities;
(m) all interest on indebtedness, if any, incurred by the Fund;
and
(n) all expenses in connection with the listing and trading of
the Fund's shares on a national securities exchange;
(o) all expenses in connection with the rating, or proposed
rating by any nationally recognized statistical rating organization of
any security issued or proposed to be issued by the Fund; and
-5-
<PAGE>
(p) all fees, dues and other expenses incurred by the Fund in
connection with membership of the Fund in any trade association or
other investment company organization.
5. Allocation of Expenses Borne by the Fund. Any expenses borne by
the Fund that are attributable solely to the organization, operation or
business of the Fund shall be paid solely out of Fund assets. Any expense
borne by the Fund which is not solely attributable to the Fund, shall be
apportioned in such manner as Manager determines is fair and appropriate,
or as otherwise specified by the Board of Trustees.
6. Expenses Borne by Manager. Manager at its own expense shall
furnish all executive and other personnel, office space, and office
facilities required to render the investment management and administrative
services set forth in this Agreement.
In the event that Manager pays or assumes any expenses of the Fund not
required to be paid or assumed by Manager under this Agreement, Manager
shall not be obligated hereby to pay or assume the same or similar expense
in the future; provided that nothing contained herein shall be deemed to
relieve Manager of any obligation to the Fund under any separate agreement
or arrangement between the parties.
7. Management Fee. For the services rendered, facilities provided,
and charges assumed and paid by Manager hereunder, the Fund shall pay to
Manager out of the assets of the Fund fees at the annual rate as set forth
in Schedule A to this Agreement. The management fee shall accrue on each
calendar day, and shall be payable monthly on the first business day of the
next succeeding calendar month. The daily fee accrual shall be computed by
multiplying the fraction of one divided by the number of days in the
calendar year by the applicable annual rate of fee, and multiplying this
product by the Managed Assets of the Fund, as of the close of business on
the last preceding business day on which the Fund's net asset value was
determined. For purposes of calculation of the management fee, the Fund's
Managed Assets shall mean the daily gross asset value of the Fund, minus
the sum of (i) the Fund's accrued and unpaid dividends on any outstanding
preferred shares of beneficial interest of the Fund ("Preferred Shares")
and (ii) accrued liabilities (other than the amount of any borrowings
incurred, commercial paper or notes issued by the Fund and liquidation
preference of any outstanding Preferred Shares, using the values determined
in the manner established by the Trustees.
8. Non-Exclusivity. The services of Manager to the Fund hereunder
are not to be deemed exclusive and Manager shall be free to render similar
services to others.
-6-
<PAGE>
9. Standard of Care. The Manager shall not be liable for any loss
sustained by reason of the purchase, sale or retention of any security,
whether or not such purchase, sale or retention shall have been based upon
the investigation and research made by any other individual, firm or
corporation, if such recommendation shall have been selected with due care
and in good faith, except loss resulting from willful misfeasance, bad
faith, or gross negligence on the part of the Manager in the performance of
its obligations and duties, or by reason of its reckless disregard of its
obligations and duties under this Agreement.
10. Amendment. This Agreement may not be amended as to the Fund
without the affirmative votes (a) of a majority of the Board of Trustees,
including a majority of those Trustees who are not "interested persons" of
the Fund or of Manager, voting in person at a meeting called for the
purpose of voting on such approval, and (b) of a "majority of the
outstanding shares" of the Fund. The terms "interested persons" and "vote
of a majority of the outstanding shares" shall be construed in accordance
with their respective definitions in the 1940 Act and, with respect to the
latter term, in accordance with Rule 18f-2 under the 1940 Act.
11. Effective Date and Termination. This Agreement shall become
effective as of the effective date for the Fund specified in Schedule A
hereto. This Agreement may be terminated at any time, without payment of
any penalty, by the Board of Trustees of the Fund, or by a vote of a
majority of the outstanding shares, upon at least sixty (60) days' written
notice to Manager. This Agreement may be terminated by Manager at any time
upon at least sixty (60) days' written notice to the Fund. This Agreement
shall terminate automatically in the event of its "assignment" (as defined
in the 1940 Act). Unless terminated as hereinbefore provided, this
Agreement shall continue in effect for an initial period of two (2) years
from the effective date applicable to the Fund specified in Schedule A and
thereafter from year to year only so long as such continuance is
specifically approved with respect to the Fund at least annually (a) by a
majority of those Trustees who are not interested persons of the Fund or of
Manager, voting in person at a meeting called for the purpose of voting on
such approval, and (b) by either the Board of Trustees of the Fund or by a
"vote of a majority of the outstanding shares" of the Fund.
12. Ownership of Records; Interparty Reporting. All records required
to be maintained and preserved by the Fund pursuant to the provisions of
rules or regulations of the Securities and Exchange Commission under
Section 31(a) of the 1940 Act or other applicable laws or regulations which
are maintained and preserved by Manager on behalf of the Fund and any other
records the parties mutually agree shall be maintained by Manager on behalf
of the Fund are the property of the Fund and shall be surrendered by
-7-
<PAGE>
Manager promptly on request by the Fund; provided that Manager may at its
own expense make and retain copies of any such records.
The Fund shall furnish or otherwise make available to Manager such
copies of the financial statements, proxy statements, reports, and other
information relating to the business and affairs of the Fund as Manager
may, at any time or from time to time, reasonably require in order to
discharge its obligations under this Agreement.
Manager shall prepare and furnish to the Fund statistical data and
other information in such form and at such intervals as the Fund may
reasonably request.
13. Non-Liability of Trustees and Shareholders. Any obligation of
the Fund hereunder shall be binding only upon the assets of the Fund and
shall not be binding upon any Trustee, officer, employee, agent or
Shareholder of the Fund. Neither the authorization of any action by the
Trustees or Shareholders of the Fund nor the execution of this Agreement on
behalf of the Fund shall impose any liability upon any Trustee or any
Shareholder.
14. Use of Manager's Name. The Fund may use the name "Nuveen
Senior Income Fund" or any other name derived from the name "Nuveen" only
for so long as this Agreement or any extension, renewal, or amendment
hereof remains in effect, including any similar agreement with any
organization which shall have succeeded to the business of Manager as
investment adviser. At such time as this Agreement or any extension,
renewal or amendment hereof, or such other similar agreement shall no
longer be in effect, the Fund will cease to use any name derived from the
name "Nuveen" or otherwise connected with Manager, or with any organization
which shall have succeeded to Manager's business as investment adviser.
15. References and Headings. In this Agreement and in any such
amendment, references to this Agreement and all expressions such as
"herein," "hereof," and "hereunder" shall be deemed to refer to this
Agreement as amended or affected by any such amendments. Headings are
placed herein for convenience of reference only and shall not be taken as a
part hereof or control or affect the meaning, construction, or effect of
this Agreement. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
-8-
<PAGE>
Dated: October 19, 1999
Nuveen Senior Income Fund
By /s/ Gifford R. Zimmerman
---------------------------------
Attest
/s/ Karen Healy
- ----------------------------- Nuveen Senior Loan Asset
Management Inc.
Attest By /s/ Jeffrey Maillet
---------------------------------
/s/ Larry Martin
- -----------------------------
-9-
<PAGE>
Nuveen Senior Income Fund
Management Agreement
Schedule A
The Fund subject to this Agreement, the effective date and initial term is
as follows:
<TABLE>
<CAPTION>
FUND EFFECTIVE DATE INITIAL TERM
<S> <C> <C>
Nuveen Senior Income Fund October 29, 1999 Until August 1, 2001
-------------------- --------------
</TABLE>
Compensation pursuant to Section 7 of this Agreement shall be calculated in
accordance with the following schedule applicable to the Managed Assets of the
Fund:
<TABLE>
<CAPTION>
Managed Assets Management Fee
<S> <C>
Up to $1.0 billion .8500 of 1%
$1.0 billion to $2.0 billion .8375 of 1%
$2.0 billion to $5.0 billion .8250 of 1%
$5.0 billion to $10.0 billion .8000 of 1%
$10.0 billion and over .7750 of 1%
</TABLE>
<PAGE>
26,000,000 Shares*
NUVEEN SENIOR INCOME FUND
Common Shares of Beneficial Interest
Par Value $.01 Per Share
UNDERWRITING AGREEMENT
----------------------
October 26, 1999
PAINEWEBBER INCORPORATED
JOHN NUVEEN & CO. INCORPORATED
DEUTSCHE BANK SECURITIES INC.
A.G. EDWARDS & SONS, INC.
PRUDENTIAL SECURITIES INCORPORATED
FIRST UNION SECURITIES, INC.
JANNEY MONTGOMERY SCOTT LLC
LEGG MASON WOOD WALKER, INCORPORATED
as Representatives of the Several Underwriters
named in Schedule 1 hereto
c/o PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Ladies and Gentlemen:
Nuveen Senior Income Fund, a Massachusetts business trust (the
"Fund"), proposes to issue and sell to you and the other underwriters named in
Schedule 1 hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), 26,000,000 shares of beneficial
interest (the "Firm Shares"), par value $.01 per share (the "Shares of
Beneficial Interest"). In addition, the Fund hereby grants to the Underwriters
an option (the "Option") to purchase up to an additional 3,900,000 of its Shares
of Beneficial Interest (the "Option Shares") solely for the purpose of covering
over-allotments. The Firm Shares and the Option Shares are referred to
collectively herein as the "Shares."
Nuveen Senior Loan Asset Management Inc., a Delaware corporation (the
"Investment Adviser") and a wholly-owned subsidiary of The John Nuveen Company,
pursuant to which will act as the Fund's investment adviser pursuant to an
Investment Management Agreement by and between the Fund and the Investment
- ------------------
* Plus an option to purchase, in the aggregate, up to 3,900,000 additional
Shares of Beneficial Interest to cover over-allotments.
<PAGE>
Adviser, dated as of October 26, 1999 (the "Investment Management Agreement").
The Underwriters acknowledge that certain registered broker-dealers may enter
into one or both of a Master Selected Dealer Agreement with PaineWebber
Incorporated, dated June 11, 1984 (the "PaineWebber Master Selected Dealer
Agreement") or with John Nuveen & Co. Incorporated ("Nuveen") dated May 2, 1999,
(the "Nuveen Master Selected Dealer Agreement"), pursuant to which such broker-
dealer may act as a Selling Group Member ("Selling Group Member") in connection
with the distribution of the Shares. The Underwriters acknowledge that in the
event such Selling Group Member has entered into both the PaineWebber Master
Selected Dealer Agreement and the Nuveen Master Selected Dealer Agreement the
terms and conditions of the PaineWebber Master Selected Dealer Agreement shall
control and that in the event such Selling Group Member shall have entered into
only the Nuveen Master Selected Dealer Agreement the terms of the Nuveen Master
Selected Dealer Agreement shall control. In addition, the Fund and the
Investment Adviser have entered into an Expense Reimbursement Agreement, dated
as of October 26, 1999 (the "Expense Reimbursement Agreement") and a
Subscription Agreement dated as of October 14, 1999 (the "Subscription
Agreement"). Chase Bank of Texas, National Association will act as the
custodian (the "Custodian") of the Fund's cash and portfolio assets pursuant to
a Custody Agreement between the Fund and the Custodian, effective as of October
26, 1999 (the "Custody Agreement"). The Chase Manhattan Bank will act as the
Fund's transfer agent and dividend disbursing agent (the "Transfer Agent")
pursuant to a transfer agency agreement between the Fund and the Transfer Agent,
dated as of October 26, 1999 (the "Transfer Agency Agreement"). The Fund has
adopted a Deferred Compensation Plan (the "Deferred Compensation Plan") in
connection with the compensation of certain of its trustees. In addition, The
Fund has adopted a dividend reinvestment plan (the "Dividend Reinvestment Plan")
pursuant to which holders of Shares may elect to reinvest their dividends in
additional Shares of Beneficial Interest of the Fund. The Investment Adviser
has entered into a letter agreement relating to pricing services (the "Pricing
Services Agreement") dated as of October 26, 1999 with DLJ Capital Funding, Inc.
The Fund and the Investment Adviser each hereby confirms as follows
their agreements with the Representatives and the several other Underwriters.
1. Sale and Purchase; Compensation
(a) The Fund will issue and sell to each Underwriter, and each
Underwriter will purchase from the Fund, the number of Firm Shares set forth
opposite such Underwriter's name in Schedule 1 hereto, at the purchase price of
$9.55 per Firm Share.
(b) The Fund grants to the Underwriters the Option to purchase
all or any part of the Option Shares for the same purchase price per share as
for the Firm Shares. The Option may be exercised only to cover over-allotments
in the sales of the Firm Shares by the Underwriters. The number of Option Shares
(adjusted by the Representatives to eliminate fractions) to be purchased by each
Underwriter will be the
<PAGE>
same percentage of the aggregate number of Option Shares being sold as such
Underwriter is obligated to purchase of the Firm Shares. Such Option may be
exercised in whole or in part, only to cover over-allotments, at any time or
from time to time on or before the 45th day after the date of this Underwriting
Agreement, upon written or telefacsimile notice (the "Option Shares Notice")
from the Representatives to the Fund no later than 12:00 noon, New York City
time, at least three and not more than five business days before the date
specified for closing in the Option Shares Notice (the "Option Shares Closing
Date"), setting forth the number of Option Shares to be purchased and the time
and date of such purchase. Upon delivery and receipt of the Option Shares
Notice, the Fund will issue and sell to each Underwriter, and each Underwriter
will purchase from the Fund, on the Option Shares Closing Date, its portion of
the number of Option Shares set forth in the Option Shares Notice.
(c) The obligations of the Underwriters under this Underwriting
Agreement are several and not joint and are undertaken on the basis of the
representations and are subject to the conditions set forth in this Underwriting
Agreement.
2. Payment and Delivery. Delivery by the Fund of the Firm Shares
(the "Firm Shares Closing") to the Representatives for the accounts of the
Underwriters against payment of the purchase price by wire transfer of Federal
Funds or similar same day funds to the Fund for the Firm Shares, will take place
at the offices of PaineWebber Incorporated (the "Managing Representative"), 1285
Avenue of the Americas, New York, New York or such other location as is agreed
upon by the parties hereto, or through the facilities of the Depository Trust
Company or another mutually agreeable facility, at 9:00 a.m., New York City
time, on the third business day following the date of this Underwriting
Agreement, or at such time on such other date, not later than ten business days
after the date of this Underwriting Agreement, as may be agreed upon by the Fund
and the Managing Representative (the "Firm Shares Closing Date").
If and to the extent that the Option is exercised, delivery of the
Option Shares and payment by the Underwriters (in the manner specified above)
will take place at the offices or through the facilities specified above for the
Firm Shares Closing at the time and date (which may be the Firm Shares Closing
Date) specified in the Option Shares Notice. Any Option Shares Closing Date may
not be later than three business days following the exercise of the related
Option. The Firm Shares Closing Date and any Option Shares Closing Date are
called the "Closing Dates."
Certificates evidencing Shares of Beneficial Interest will be in
definitive form (or temporary form acceptable to the New York Stock Exchange),
registered in such names and in such denominations as the Managing
Representative requests at least three full business days before the Firm Shares
Closing Date or, in the case of Option Shares, on the day of notice of exercise
of the Option as described in Section 1(b), and will be made available to the
Managing Representative for checking and packaging, at a place in New York City
designated by the Managing Representative, at least one full business day before
the relevant Closing Date.
<PAGE>
3. Registration Statement and Prospectus; Public Offering. The Fund
has filed with the Securities and Exchange Commission (the "Commission"),
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), the
Investment Company Act of 1940, as amended (the "Investment Company Act"), and
the published rules and regulations adopted by the Commission under the
Securities Act (the "Securities Act Rules") and the Investment Company Act (the
"Investment Company Act Rules"), a Notification of Registration on Form N-8A
(the "Notification") pursuant to Section 8 of the Investment Company Act and a
registration statement on Form N-2 (File Nos. 333-86619 and 811-09571) relating
to the Shares (the "registration statement"), including a preliminary prospectus
(including any preliminary statement of additional information), and such
amendments to such registration statement as may have been required to the date
of this Underwriting Agreement. The preliminary prospectus (including any
preliminary statement of additional information) is to be used in connection
with the offering and sale of the Shares. The term "Preliminary Prospectus" as
used herein means any preliminary prospectus (including any preliminary
statement of additional information) included at any time as a part of the
registration statement and any advertisement or sales material deemed to be a
prospectus under Section 10(b) of the Securities Act pursuant to Rule 482 of the
Securities Act Rules.
The Fund has furnished the Representatives copies of such registration
statement, each amendment to such registration statement filed by the Fund with
the Commission and the Preliminary Prospectus filed by the Fund with the
Commission or used by the Fund. If the registration statement has not become
effective, a further amendment (the "Final Amendment") to such registration
statement, including the forms of final prospectus (including any final
statement of additional information), necessary to permit such registration
statement to become effective will promptly be filed by the Fund with the
Commission. If such registration statement has become effective and any
prospectus (including any statement of additional information) contained therein
omits certain information at the time of effectiveness pursuant to Rule 430A of
the Securities Act Rules, a final prospectus (the "Rule 430A Prospectus")
containing such omitted information will be filed by the Fund with the
Commission in accordance with Rule 497(h) of the Securities Act Rules. The
registration statement as amended at the time it becomes or became effective
(the "Effective Date"), including financial statements and all exhibits, and any
information deemed to be included by Rule 430A, is called the "Registration
Statement." The term "Prospectus" means the prospectus (including any statement
of additional information) in the form in which it is first filed with the
Commission pursuant to Rule 497(b), (h) or (j) of the Securities Act Rules, as
the case may be.
The Fund and the Investment Adviser understand that the Underwriters
propose to make a public offering of the Firm Shares, as described in the
Prospectus, as soon after the Effective Date (or, if later, after the date this
Underwriting Agreement is signed) as the Managing Representative deems
advisable. The Fund confirms that the Underwriters and dealers have been
authorized to distribute the Preliminary Prospectus
<PAGE>
relating to the Shares included in Pre-Effective Amendment No. 1 of the
registration statement and are authorized to distribute the Prospectus and any
amendments or supplements thereto.
4. Representations.
(a) Each of the Fund and the Investment Adviser jointly and
severally represents to each Underwriter as follows:
(i) On (A) the Effective Date and the date on which the
Prospectus is first filed with the Commission pursuant to Rule 497(b), (h)
or (j) of the Securities Act Rules, as the case may be and (B) the date on
which any post-effective amendment to the Registration Statement (except
any post-effective amendment which is filed with the Commission after the
later of (x) one year from the date of this Underwriting Agreement or (y)
the date on which the distribution of the Shares is completed) became or
becomes effective or any amendment or supplement to the Prospectus was or
is filed with the Commission, the Registration Statement, the Prospectus
and any such amendment or supplement thereto and the Notification complied
or will comply in all material respects with the requirements of the
Securities Act, the Investment Company Act, the Securities Act Rules and
the Investment Company Act Rules, as the case may be. On the Effective
Date and on the date that any post-effective amendment to the Registration
Statement (except any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of this
Underwriting Agreement or (y) the date on which the distribution of the
Shares is completed) became or becomes effective, neither the Registration
Statement nor any such amendment did or will contain any untrue statement
of a material fact or omit to state a material fact required to be stated
in it or necessary to make the statements in it not misleading. At the
Effective Date and, if applicable, the date the Prospectus or any amendment
or supplement to the Prospectus was or is filed with the Commission and at
the Closing Dates, the Prospectus did not or will not, as the case may be,
contain any untrue statement of a material fact or omit to state a material
fact required to be stated in it or necessary to make the statements in it,
in light of the circumstances under which they were made, not misleading.
The foregoing representations in this Section 4(a)(i) do not apply to
statements or omissions relating to the Underwriters made in reliance on
and in conformity with information furnished in writing to the Fund by the
Representatives expressly for use in the Registration Statement, the
Prospectus, or any amendments or supplements thereto, as described in
Section 7(f) hereof.
<PAGE>
(ii) The Fund has been duly formed, is validly existing as
a business trust under the laws of The Commonwealth of Massachusetts, with
full power and authority to conduct all the activities conducted by it, to
own or lease all assets owned or leased by it and to conduct its business
as described in the Registration Statement and Prospectus, and the Fund is
duly licensed and qualified to do business and in good standing in each
jurisdiction in which its ownership or leasing of property or its
conducting of business requires such qualification, except where the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Fund, and the Fund owns, possesses or has obtained
and currently maintains all material governmental licenses, permits,
consents, orders, approvals and other authorizations, whether foreign or
domestic, necessary to carry on its business as contemplated in the
Prospectus. The Fund has no subsidiaries.
(iii) The capitalization of the Fund is as set forth in the
Registration Statement and the Prospectus. The Shares of Beneficial
Interest of the Fund conform in all material respects to the description of
them in the Prospectus. All the outstanding Shares of Beneficial Interest
have been duly authorized and are validly issued, fully paid and
nonassessable (except as described in the Registration Statement). The
Shares to be issued and delivered to and paid for by the Underwriters in
accordance with this Underwriting Agreement against payment therefor as
provided by this Underwriting Agreement have been duly authorized and when
issued and delivered to the Underwriters will have been validly issued and
will be fully paid and nonassessable (except as described in the
Registration Statement). No person is entitled to any preemptive or other
similar rights with respect to the Shares.
(iv) The Fund is duly registered with the Commission under
the Investment Company Act as a non-diversified, closed-end management
investment company, and, subject to the filing of the Final Amendment if
not already filed, all action under the Securities Act, the Investment
Company Act, the Securities Act Rules and the Investment Company Act Rules,
as the case may be, necessary to make the public offering and consummate
the sale of the Shares as provided in this Underwriting Agreement has or
will have been taken by the Fund.
(v) The Fund has full power and authority to enter into
each of this Underwriting Agreement, the Investment Management Agreement,
the Custody Agreement, the Transfer Agency Agreement, the Expense
Reimbursement Agreement, the Subscription
<PAGE>
Agreement, the Dividend Reinvestment Plan and the Deferred Compensation
Plan (collectively, the "Fund Agreements") and to perform all of the terms
and provisions hereof and thereof to be carried out by it and (A) each Fund
Agreement has been duly and validly authorized, executed and delivered by
or on behalf of the Fund, (B) each Fund Agreement does not violate in any
material respect any of the applicable provisions of the Investment Company
Act, the Investment Advisers Act of 1940 (the "Advisers Act"), the
Investment Company Act Rules and the rules and regulations adopted by the
Commission under the Advisers Act (the "Advisers Act Rules"), as the case
may be, and (C) assuming due authorization, execution and delivery by the
other parties thereto, each Fund Agreement constitutes the legal, valid and
binding obligation of the Fund enforceable in accordance with its terms,
(1) subject, as to enforcement, to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general equitable
principles (regardless of whether enforcement is sought in a proceeding in
equity or at law) and (2) with respect to this Underwriting Agreement,
except as rights to indemnity thereunder may be limited by federal or state
securities laws.
(vi) None of (A) the execution and delivery by the Fund of
the Fund Agreements, (B) the issue and sale by the Fund of the Shares as
contemplated by this Underwriting Agreement and (C) the performance by the
Fund of its obligations under any of the Fund Agreements or consummation by
the Fund of the other transactions contemplated by the Fund Agreements
conflicts with or will conflict with, or results or will result in a breach
of, the Declaration of Trust or the By-laws of the Fund or a material
breach of any material agreement or instrument to which the Fund is a party
or by which the Fund is bound, or any law, rule or regulation, or order of
any court, governmental instrumentality, securities exchange or association
or arbitrator, whether foreign or domestic, applicable to the Fund (which
breach, either individually or in the aggregate, would have a material
adverse effect on the Fund), other than state securities or "blue sky" laws
applicable in connection with the purchase and distribution of the Shares
by the Underwriters pursuant to this Underwriting Agreement.
(vii) The Fund is not currently in material breach of, or
in material default under, any material written agreement or instrument to
which it is a party or by which it or its property is bound or affected.
(viii) No person has any right to the registration of any
securities of the Fund because of the filing of the registration statement.
<PAGE>
(ix) No consent, approval, authorization or order of any
court or governmental agency or body or securities exchange or association,
whether foreign or domestic, is required by the Fund for the consummation
by the Fund of the transactions to be performed by the Fund or the
performance by the Fund of all the terms and provisions to be performed by
or on behalf of it in each case as contemplated in the Fund Agreements,
except such as (A) the absence of which, either individually or in the
aggregate, would not have a material adverse effect on the Fund (B) have
been obtained under the Securities Act, the Exchange Act, the Investment
Company Act, the Advisers Act, the Securities Act Rules, the Exchange Act
Rules, the Investment Company Act Rules, and the Advisers Act Rules, and
(C) may be required by the New York Stock Exchange or under state
securities or "blue sky" laws, in connection with the purchase and
distribution of the Shares by the Underwriters pursuant to this
Underwriting Agreement.
(x) The Shares are duly authorized for listing, subject to
official notice of issuance, on the New York Stock Exchange and the Fund's
Registration Statement on Form 8-A under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), has become effective.
(xi) KPMG LLP, whose report appears in the Prospectus, are
independent public accountants with respect to the Fund as required by the
Securities Act, the Investment Company Act, the Securities Act Rules and
the Investment Company Act Rules.
(xii) The statement of assets and liabilities included in
the Registration Statement and the Prospectus presents fairly in all
material respects, in accordance with generally accepted accounting
principles in the United States applied on a consistent basis (except as
otherwise noted in any footnotes thereto), the financial position of the
Fund as of the date indicated.
(xiii) The Fund will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management's general or
specific authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(C) access to assets is permitted only in accordance with management's
general or specific authorization; and (D) the recorded accountability for
assets is compared with existing assets
<PAGE>
through an asset reconciliation procedure or otherwise at reasonable
intervals and appropriate action is taken with respect to any differences.
(xiv) Since the date as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, business affairs or business of the Fund (other
than as a result of changes in the markets for senior secured corporate
loans generally), whether or not arising in the ordinary course of
business, (B) there have been no material transactions entered into by the
Fund other than those in the ordinary course of its business and (C) there
has been no dividend or distribution of any kind declared, paid or made on
any class of its capital shares.
(xv) There is no action, suit or proceeding before or by
any court, commission, regulatory body, administrative agency or other
governmental agency or body, foreign or domestic, now pending, or, to the
knowledge of the Fund, threatened against or affecting the Fund, which (A)
could reasonably be expected to result in any material adverse change in
the condition, financial or otherwise or business affairs of the Fund or
could reasonably be expected to materially adversely affect the properties
or assets of the Fund or (B) is of a character required to be described in
the Registration Statement or the Prospectus and is not so described as
required; and there are no contracts, franchises or other documents that
are of a character required to be described in, or that are required to be
filed as exhibits to, the Registration Statement that have not been
described or filed as required.
(xvi) Except for stabilization transactions conducted by
the Underwriters, and except for tender offers, Share repurchases and the
issuance or purchase of Shares pursuant to the Fund's dividend investment
plan (the "Dividend Investment Plan") effected following the date on which
the distribution of the Shares is completed in accordance with the policies
of the Fund as set forth in the Prospectus, the Fund has not taken and will
not take, directly or indirectly, any action designed or which could
reasonably be expected to cause or result in, or which will constitute,
stabilization or manipulation of the price of the Shares of Beneficial
Interest in violation of applicable federal securities laws.
(xvii) 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 Internal Revenue Code of 1986, as
amended (the "Code").
<PAGE>
(xviii) To the knowledge of the Fund, no advertising, sales
literature or other promotional materials (including road show slides or
road show tapes) were authorized or prepared by the Fund and the Investment
Adviser or any representative thereof for use in connection with the public
offering or sale of the Shares other than the (A) client brochure, (B) the
adviser brochure, (C) the adviser fact card, (D) the announcement card, (E)
the mailing cover letter and (F) the prospecting letter, drafts of each of
which were filed with the NASD on September 3, 1999 and September 14, 1999,
and final forms of which were filed with the NASD on September ___, 1999,
and (G) the road show slides and accompanying presentation materials
prepared by the Fund and the Investment Adviser for posting on one or more
Internet websites (collectively, the "sales materials"); the sales
materials complied and comply in all material respects with the applicable
requirements of the Securities Act, the Securities Act Rules and the rules
and interpretations of the NASD; and none of the sales materials contained
or contains any untrue statement of a material fact or omitted or omits to
state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading, in light of the
circumstances under which they were made.
(b) The Investment Adviser represents to each Underwriter as
follows:
(i) The Investment Adviser has been duly formed, is validly
existing as a corporation under the laws of Delaware with full power and
authority to conduct all of the activities conducted by it, to own or lease
all of the assets owned or leased by it and to conduct its business as
described in the Registration Statement and Prospectus, and the Investment
Adviser is duly licensed and qualified to do business and in good standing
in each jurisdiction in which it is required to be so qualified, except to
the extent that failure to be so qualified or be in good standing would not
have a material adverse affect on the Investment Adviser; and the
Investment Adviser owns, possesses or has obtained and currently maintains
all governmental licenses, permits, consents, orders, approvals and other
authorizations, whether foreign or domestic, necessary to carry on its
business as contemplated in the Registration Statement and the Prospectus
except those the absence of which, either individually or in the aggregate,
would not have a material adverse effect on the Investment Adviser.
(ii) The Investment Adviser is (A) duly registered as an
investment adviser under the Advisers Act and (B) not prohibited by the
Advisers Act, the Investment Company Act, the Advisers Act Rules or the
Investment Company Act Rules from acting
<PAGE>
as the investment adviser for the Fund as contemplated by the Investment
Advisory Agreement, the Registration Statement and the Prospectus.
(iii) The Investment Adviser has full power and authority
to enter into each of this Underwriting Agreement, the Investment
Management Agreement, the Expense Reimbursement Agreement, the Subscription
Agreement and the Pricing Agreement (together, such agreements being
referred to as the "Investment Adviser Agreements") and to carry out all
the terms and provisions hereof and thereof to be carried out by it; and
each Investment Adviser Agreement has been duly and validly authorized,
executed and delivered by the Investment Adviser; none of the Investment
Adviser Agreements violate in any material respect any of the applicable
provisions of the Investment Company Act, the Advisers Act, the Investment
Company Act Rules and the Advisers Act Rules; and assuming due
authorization, execution and delivery by the other parties thereto, each
Investment Adviser Agreement constitutes a legal, valid and binding
obligation of the Investment Adviser, enforceable in accordance with its
terms, (1) subject, as to enforcement, to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and to general
equitable principles (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (2) with respect to this Underwriting
Agreement, except as rights to indemnity thereunder may be limited by
federal or state securities laws.
(iv) Neither (A) the execution and delivery by the
Investment Adviser of any Investment Adviser Agreement by the Investment
Adviser nor (B) the consummation by the Investment Adviser of the
transactions contemplated by, or the performance of its obligations under
any Investment Adviser Agreement conflicts or will conflict with, or
results or will result in a breach of, the Certificate of Incorporation or
By-Laws of the Investment Adviser or any material agreement or instrument
to which the Investment Adviser is a party or by which the Investment
Adviser is bound, or any law, rule or regulation, or order of any court,
governmental instrumentality, securities exchange or association or
arbitrator, whether foreign or domestic, applicable to the Investment
Adviser which conflict or breach, either individually or in the aggregate,
would have a material adverse effect on the Investment Adviser.
(v) No consent, approval, authorization or order of any
court, governmental agency or body or securities exchange or association,
whether foreign or domestic, is required for the consummation of the
transactions contemplated in, or the performance by the
<PAGE>
Investment Adviser of its obligations under, any Investment Adviser
Agreement, as the case may be, except such as (A) have been obtained under
the Investment Company Act, the Advisers Act, the Securities Act, the
Investment Company Act Rules, the Advisers Act Rules and the Securities Act
Rules, and (B) may be required by the New York Stock Exchange or under
state securities or "blue sky" laws, in connection with the purchase and
distribution of the Shares by the Underwriters pursuant to this
Underwriting Agreement.
(vi) The description of the Investment Adviser and its
business, and the statements attributed to the Investment Adviser, in the
Registration Statement and the Prospectus comply in all material respects
with the requirements of the Securities Act, the Investment Company Act,
the Securities Act Rules and the Investment Company Act Rules and, with
respect to the Prospectus, do not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(vii) Except as set forth in the Registration Statement and
Prospectus, there is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other governmental
agency or body, foreign or domestic, now pending or, to the knowledge of
the Investment Adviser, threatened, against or affecting the Investment
Adviser of a nature required to be disclosed in the Registration Statement
or Prospectus or that could reasonably be expected to result in any
material adverse change in the condition, financial or otherwise, business
affairs or business prospects of the Investment Adviser or the ability of
the Investment Adviser to fulfill its respective obligations under any
Investment Adviser Agreement.
(viii) Except for stabilization activities conducted by the
Underwriters and except for tender offers, Share repurchases and the
issuance or purchase of Shares pursuant to the Fund's Dividend Investment
Plan effected following the date on which the distribution of the Shares is
completed in accordance with the policies of the Fund as set forth in the
Prospectus, the Investment Adviser has not taken and will not take,
directly or indirectly, any action designed, or which could reasonably be
expected to cause or result in, or which will constitute, stabilization or
manipulation of the price of the Shares of Beneficial Interest in violation
of applicable federal securities laws.
(ix) In the event that the Fund or the Investment Adviser
makes available any sales materials or other promotional
<PAGE>
materials intended for use only by qualified broker-dealers and registered
representatives thereof by means of an Internet web site or similar
electronic means, the Investment Adviser will install and maintain pre-
qualification and password-protection or similar procedures which are
designed and reasonably expected to effectively prohibit access to such
promotional materials by persons other than qualified broker-dealers and
registered representatives thereof.
5. Agreements of the Parties.
(a) If the registration statement relating to the Shares has not
yet become effective, the Fund will promptly file the Final Amendment, if not
previously filed, with the Commission, and will use its commercially reasonable
best efforts to cause such registration statement to become effective and, as
soon as the Fund is advised, will advise the Representatives when the
Registration Statement or any amendment thereto has become effective. 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 Securities Act Rules, the Fund will file a 430A Prospectus pursuant to Rule
497(h) of the Securities Act Rules as promptly as practicable, but no later than
the second business day following the earlier of the date of the determination
of the offering price of the Shares or the date the Prospectus is first used
after the Effective Date. 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(b) or (j) of the Securities Act
Rules as promptly as practicable, but no later than the fifth business day
following the date of the later of the Effective Date or the commencement of the
public offering of the Shares after the Effective Date. In either case, the
Fund will provide the Representatives satisfactory evidence of the filing. The
Fund will not file with the Commission any Prospectus or any other amendment
(except any post-effective amendment which is filed with the Commission after
the later of (x) one year from the date of this Underwriting Agreement or (y)
the date on which distribution of the Shares is completed) or supplement to the
Registration Statement or the Prospectus unless a copy has first been submitted
to the Managing Representative a reasonable time before its filing and the
Managing Representative has not objected to it in writing within a reasonable
time after receiving the copy.
(b) For the period of three years from the date hereof, the Fund
will advise the Representatives promptly (1) of the issuance by the Commission
of any order in respect of the Fund or the Investment Adviser which relates to
the Fund, or which relates to any material arrangements or proposed material
arrangements involving the Fund or the Investment Adviser, (2) of the initiation
or threatening in writing of any proceedings for, or receipt by the Fund of any
written notice with respect to, the suspension of the qualification of the
Shares for sale in any jurisdiction or the issuance of any order by the
Commission suspending the effectiveness of the Registration Statement, (3) of
receipt by the Fund, or any representative or attorney of the Fund, of
<PAGE>
any other communication from the Commission relating in any material way to the
Fund, the Registration Statement, the Notification, any Preliminary Prospectus,
the Prospectus or to the transactions contemplated by this Underwriting
Agreement and (4) the issuance by any court, regulatory body, administrative
agency or other governmental agency or body, whether foreign or domestic, of any
order, ruling or decree, or the threat in writing to initiate any proceedings
with respect thereto, regarding the Fund, which relates in any material way to
the Fund or any material arrangements or proposed material arrangements
involving the Fund. The Fund will make every reasonable effort to prevent the
issuance of any order suspending the effectiveness of the Registration Statement
and, if any such order is issued, to obtain its lifting as soon as practicable.
(c) If not delivered prior to the date of this Underwriting
Agreement, the Fund will deliver to the Representatives, without charge, a
signed copy of the registration statement and the Notification and of any
amendments (except any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of this Underwriting
Agreement or (y) the date on which the distribution of the Shares is completed)
to either the Registration Statement or the Notification (including all exhibits
filed with any such document) and as many conformed copies of the registration
statement and any amendments thereto (except any post-effective amendment which
is filed with the Commission after the later of (x) one year from the date of
this Underwriting Agreement or (y) the date on which the distribution of the
Shares is completed) (excluding exhibits) as the Representatives may reasonably
request.
(d) During such period as a prospectus is required by law to be
delivered by an underwriter or a dealer, the Fund will deliver, without charge,
to the Representatives, the Underwriters and any dealers, at such office or
offices as the Representatives may designate, as many copies of the Prospectus
as the Representatives may reasonably request, and, if any event occurs during
such period as a result of which it is necessary to amend or supplement the
Prospectus, in order to make the statements therein, in light of the
circumstances existing when such Prospectus is delivered to a purchaser of
Shares, not misleading in any material respect, or if during such period it is
necessary to amend or supplement the Prospectus to comply with the Securities
Act, the Investment Company Act, the Securities Act Rules or the Investment
Company Act Rules, the Fund promptly will prepare, submit to the Managing
Representative, file with the Commission and deliver, without charge, to the
Underwriters and to dealers (whose names and addresses the Representatives will
furnish to the Fund) to whom Shares may have been sold by the Underwriters, and
to other dealers on request, amendments or supplements to the Prospectus so that
the statements in such Prospectus, as so amended or supplemented, will not, in
light of the circumstances existing when such Prospectus is delivered to a
purchaser, be misleading in any material respect and will comply with the
Securities Act, the Investment Company Act, the Securities Act Rules and the
Investment Company Act Rules. Delivery by the Underwriters of any such
amendments or supplements to the Prospectus will not constitute a waiver of any
of the conditions in Section 6 hereof.
<PAGE>
(e) The Fund will make generally available to holders of the
Fund's securities, as soon as practicable but in no event later than the last
day of the 18th full calendar month following the calendar quarter in which the
Effective Date falls, an earnings statement, if applicable, satisfying the
provisions of Section 11(a) of the Securities Act and, at the option of the
Fund, Rule 158 of the Securities Act Rules.
(f) The Fund will take such actions as the Representatives
reasonably request in order to qualify the Shares for offer and sale under the
securities or "blue sky" laws of such jurisdictions as the Representatives
reasonably designate; provided that the Fund shall not be required in connection
therewith or as a condition thereof to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction.
(g) If the transactions contemplated by this Underwriting
Agreement are consummated, the Fund shall pay all costs and expenses incident to
the performance of the obligations of the Fund under this Underwriting
Agreement, including but not limited to costs and expenses of or relating to (1)
the fees, disbursements and expenses of the Fund's counsel and accountants in
connection with the registration of the Shares and all other expenses in
connection with the preparation, printing and filing of the registration
statement and exhibits to it, each Preliminary Prospectus, the Prospectus and
all amendments and supplements thereto, (2) the issuance of the Shares and the
preparation and delivery of certificates for the Shares, (3) the registration or
qualification of the Shares for offer and sale under the securities or "blue
sky" laws of the jurisdictions referred to in the foregoing paragraph, including
the reasonable fees and disbursements, if any, of counsel for the Underwriters
in that connection, and the preparation and printing of preliminary and
supplemental "blue sky" memoranda, (4) the furnishing (including costs of
design, production, shipping and mailing) to the Underwriters and dealers of
copies of each Preliminary Prospectus relating to the Shares, the sales
materials, the Prospectus, and all amendments or supplements to the Prospectus,
and of the other documents required by this Section to be so furnished, (5) the
filing requirements of the National Association of Securities Dealers, Inc., in
connection with its review of the financing, including filing fees and the
separate fees, disbursements and other charges, if any, of counsel for the
Underwriters in that connection, (6) all transfer taxes, if any, with respect to
the sale and delivery of the Shares to the Underwriters, (7) the listing of the
Shares on the New York Stock Exchange and (8) the transfer agent for the Shares;
provided that (i) the Fund, the Investment Adviser and each Underwriter shall
pay its own costs and expenses relating to the attendance at any road show or
other informational meeting relating to the Fund, (ii) each Underwriter shall
pay the costs and expenses of any internal promotional or informational
materials relating to the Fund, other than the sales materials, prepared by such
Underwriter in connection with the offering of the Shares, (iii) the
Underwriters shall pay the costs and expenses of any "tombstone" announcements
relating to the offering of the Shares and (iv) except as expressly provided in
this Section 5(g), the
<PAGE>
Underwriters shall pay their own costs and expenses, including fees and
disbursements of their counsel.
(h) If the transactions contemplated by this Underwriting
Agreement are not consummated, except as otherwise provided herein, no party
will be under any liability to any other party, except that (1) if this
Underwriting Agreement is terminated by (x) the Fund or the Investment Adviser
pursuant to any of the provisions hereof (otherwise than pursuant to Section 8
hereof) or (y) by the Representatives or the Underwriters because of any
inability, failure or refusal on the part of the Fund or the Investment Adviser
to comply with any material terms or because any of the conditions in Section 6
are not satisfied, the Investment Adviser and the Fund, jointly and severally,
will reimburse the Underwriters for all out-of-pocket expenses (including the
reasonable fees, disbursements and other charges of their counsel) reasonably
incurred by them in connection with the proposed purchase and sale of the Shares
(provided, however, that the Fund and the Investment Adviser shall not be liable
for any loss of anticipated profits or speculative or consequential or similar
damages for such termination) and (2) no Underwriter who has failed or refused
to purchase the Shares agreed to be purchased by it under this Underwriting
Agreement, in breach of its obligations pursuant to this Underwriting Agreement,
will be relieved of liability to the Fund and the Investment Adviser and the
other Underwriters for damages occasioned by its default.
(i) Without the prior written consent of the Managing
Representatives the Fund will not offer, sell or register with the Commission,
or announce an offering of, any equity securities of the Fund, within 180 days
after the Effective Date, except for the Shares as described in the Prospectus
and any issuances of Shares of Beneficial Interest pursuant to the dividend
reinvestment plan established by the Fund and except in connection with any
offering of preferred shares of beneficial interest as contemplated by the
Prospectus.
(j) The Fund will use its commercially reasonable best efforts
to list the Shares on the New York Stock Exchange and comply with the rules and
regulations of such exchange.
(k) 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
objective and policies of the Fund as described in the Prospectus.
6. Conditions of the Underwriters' Obligations. The obligations of
the Underwriters to purchase the Shares are subject to the accuracy on the date
of this Underwriting Agreement, and on the Closing Dates, of the representations
of the Fund and the Investment Adviser in this Underwriting Agreement, to the
accuracy and completeness of all statements made by the Fund or the Investment
Adviser or any of their respective officers in any certificate delivered to the
Representatives or their counsel pursuant to this Underwriting Agreement, to
performance by the Fund and the
<PAGE>
Investment Adviser of their respective obligations under this Underwriting
Agreement and to each of the following additional conditions:
(a) The registration statement must have become effective by
5:30 p.m., New York City time, on the date of this Underwriting Agreement or
such later date and time as the Managing Representative consents to in writing.
The Prospectus must have been filed in accordance with Rule 497(b), (h) or (j),
as the case may be, of the Securities Act Rules.
(b) No order suspending the effectiveness of the Registration
Statement may be in effect and no proceedings for such purpose may be pending
before or, to the knowledge of counsel to the Underwriters, threatened by the
Commission, and any requests for additional information on the part of the
Commission (to be included in the Registration Statement or the Prospectus or
otherwise) must be complied with or waived to the reasonable satisfaction of the
Managing Representative.
(c) Since the dates as of which information is given in the
Registration Statement and the Prospectus, (1) there must not have been any
material change in the Shares of Beneficial Interest or liabilities of the Fund
except as set forth in or contemplated by the Prospectus; (2) there must not
have been any material adverse change in the general affairs, prospects,
management, business, financial condition or results of operations of the Fund
or the Investment Adviser whether or not arising from transactions in the
ordinary course of business as set forth in or contemplated by the Prospectus
(other than, in the case of the Fund, as a result of changes in the markets for
senior secured corporate loans generally); (3) the Fund 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, whether foreign or
domestic, or from any other occurrence not described in the Registration
Statement and Prospectus; and (4) there must not have occurred any event that
makes untrue or incorrect in any material respect any statement or information
contained in the Registration Statement or Prospectus or that is not reflected
in the Registration Statement or Prospectus but should be reflected therein in
order to make the statements or information therein (in the case of the
Prospectus, in light of the circumstances in which they were made) not
misleading in any material respect; if, in the judgment of the Managing
Representative, any such development referred to in clause (1), (2), (3) or (4)
of this paragraph (c) makes it impracticable or inadvisable to consummate the
sale and delivery of the Shares pursuant to this Underwriting Agreement by the
Underwriters, at the initial public offering price of the Shares.
(d) The Representatives must have received on each Closing Date
a certificate, dated such date, of the President or a Vice-President and the
chief financial or accounting officer or controller or treasurer of each of the
Fund and the Investment Adviser certifying that (1) the signers have carefully
examined the Registration Statement, the Prospectus, and this Underwriting
Agreement, (2) the representations of the Fund (with respect to the certificates
from such Fund officers) and
<PAGE>
the representations of the Investment Adviser (with respect to the certificates
from such officers of the Investment Adviser) in this Underwriting Agreement are
accurate on and as of the date of the certificate, (3) there has not been any
material adverse change in the general affairs, prospects, management, business,
financial condition or results of operations of the Fund (with respect to the
certificates from such Fund officers) or the Investment Adviser (with respect to
the certificates from such officers of the Investment Adviser), which change
would materially and adversely affect the ability of the Fund or the Investment
Adviser, as the case may be, to fulfill its obligations under this Underwriting
Agreement or the Investment Advisory Agreement, whether or not arising from
transactions in the ordinary course of business (other than, with respect to the
certificates from such Fund officers, as a result of changes in the markets for
senior secured corporate loans generally), (4) with respect to the Fund only, to
the knowledge of such officers, no order suspending the effectiveness of the
Registration Statement, prohibiting the sale of any of the Shares or otherwise
having a material adverse effect on the Fund has been issued and no proceedings
for any such purpose are pending before or threatened by the Commission or any
other regulatory body, whether foreign or domestic, (5) to the knowledge of the
officers of the Investment Adviser, after reasonable investigation, no order
having a material adverse effect on the ability of the Investment Adviser to
fulfill its obligations under this Underwriting Agreement or the Investment
Advisory Agreement, as the case may be, has been issued and no proceedings for
any such purpose are pending before or threatened by the Commission or any other
regulatory body, whether foreign or domestic, and (6) each of the Fund (with
respect to the certificates from such Fund officers) and the Investment Adviser
(with respect to the certificates from such officers of the Investment Adviser)
has performed all of its respective agreements that this Underwriting Agreement
requires it to perform by such Closing Date (to the extent not waived in writing
by the Managing Representative).
(e) The Representatives must receive on each Closing Date the
opinions dated such Closing Date substantially in the form of Annexes A and B to
this Underwriting Agreement from the counsel identified in each such Annex.
(f) The Representatives must receive on each Closing Date from
Skadden, Arps, Slate, Meagher & Flom LLP and its affiliated entities, its
counsel, an opinion dated such Closing Date with respect to the Fund, the
Shares, the Registration Statement and the Prospectus, this Underwriting
Agreement and the form and sufficiency of all proceedings taken in connection
with the sale and delivery of the Shares. Such opinion and proceedings shall
fulfill the requirements of this Section 6(f) only if such opinion and
proceedings are satisfactory in all respects to the Representatives. The Fund
and the Investment Adviser must have furnished to such counsel such documents as
counsel may reasonably request for the purpose of enabling them to render such
opinion.
(g) The Representatives must receive on the date this
Underwriting Agreement is signed and delivered by the Representatives a signed
letter, dated such
<PAGE>
date, substantially in the form of Annex C to this Underwriting Agreement from
the firm of accountants designated in such Annex. The Representatives also must
receive on each Closing Date a signed letter from such accountants, dated as of
such Closing Date, confirming on the basis of a review in accordance with the
procedures set forth in their earlier letter that nothing has come to their
attention during the period from a date not more than five business days before
the date of this Underwriting Agreement, specified in the letter, to a date not
more than five business days before such Closing Date, that would require any
change in their letter referred to in the foregoing sentence.
All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Underwriting Agreement will comply only if they are in form
and scope reasonably satisfactory to counsel for the Underwriters, provided that
any such documents, forms of which are annexed hereto, shall be deemed
satisfactory to such counsel if substantially in such form.
7. Indemnification and Contribution.
(a) Each of the Fund and the Investment Adviser, jointly and
severally, will indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of such Underwriter and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act from and against any and all losses, claims,
liabilities, expenses and damages (including, but not limited to, any and all
investigative, legal and other expenses reasonably incurred in connection with,
and any and all amounts paid in settlement (in compliance herewith) of, any
action, suit or proceeding between any of the indemnified parties and any
indemnifying parties or between any indemnified party and any third party, or
otherwise, or any claim asserted), to which such Underwriter or any such person,
or any of them, may become subject under the Securities Act, the Exchange Act,
the Investment Company Act, the Advisers Act or other federal or state statutory
law or regulation, at common law or otherwise, whether foreign or domestic,
insofar as such losses, claims, liabilities, expenses or damages arise out of or
are based on (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Preliminary Prospectus, the
Prospectus, the sales materials, or any amendment or supplement to the
Registration Statement, the Preliminary Prospectus, the Prospectus, the sales
materials or in any documents filed under the Exchange Act and deemed to be
incorporated by reference into the Registration Statement, the Preliminary
Prospectus, the Prospectus, or in any application or other document executed by
or on behalf of the Fund or based on written information furnished by or on
behalf of the Fund filed in any jurisdiction in order to qualify the Shares
under the securities laws thereof or filed with the Commission, (ii) the
omission or alleged omission to state, in any or all such documents, a material
fact required to be stated therein or necessary to make the statements therein
not misleading or (iii) any act or failure to act or any alleged act or failure
to act by such Underwriter in connection with, or relating in any manner to, the
Shares or the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, liability, expense or damage
<PAGE>
arising out of or based upon matters covered by clause (i) or (ii) above
(provided, however, that neither of the Fund nor the Investment Adviser shall be
liable under this clause (iii) to the extent it is finally judicially determined
by a court of competent jurisdiction that such loss, claim, liability, expense
or damage resulted directly from any such acts or failures to act undertaken or
omitted to be taken by such indemnified party through its gross negligence, bad
faith or willful misconduct); provided that neither the Fund nor the Investment
Adviser will be liable to the extent that such losses, claims, liabilities,
expenses or damages arise from the sale of the Shares in the public offering to
any person by an underwriter, including an Underwriter, pursuant to this
Agreement and are based on an untrue statement or omission or alleged untrue
statement or omission (1) made in reliance on and in conformity with information
relating to any Underwriter furnished in writing to the Fund by the
Representatives on behalf of Underwriters expressly for inclusion in the
Registration Statement, the Preliminary Prospectus or the Prospectus or (2) if a
copy of the Prospectus was not sent or given to such person at or before the
confirmation of the sale to such person in any case where such delivery is
required by the Securities Act, unless such failure to deliver such Prospectus
was a result of noncompliance by the Fund with Section 5(d) hereof or (3) made
in any preliminary prospectus which untrue statement or omission or alleged
untrue statement or omission was corrected in all material respects in the
Prospectus (as then amended or supplemented) if the Fund and/or the Investment
Adviser, as the case may be, shall sustain the burden of proving that the
Underwriters sold Shares to the person alleging such loss, claim, liability,
expense or damage without sending or giving, at or prior to the written
confirmation of such sale, a copy of the Prospectus (as then amended or
supplemented) if the Fund had previously furnished copies thereof to the
Underwriters in accordance with this Agreement, and the Underwriters failed to
deliver the corrected Prospectus, if required by law to have so delivered it and
if delivered would have been a complete defense against the person asserting
such loss, claim, liability, expense or damage. This indemnity agreement will be
in addition to any liability that the Fund, the Investment Adviser and Nuveen
might otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Fund
and the Investment Adviser, each person, if any, who controls the Fund or the
Investment Adviser within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, each trustee of the Fund and each officer of the
Fund who signs the Registration Statement to the same extent as the foregoing
indemnity from the Fund or the Investment Adviser to the Underwriter, but only
insofar as losses, claims, liabilities, expenses or damages arise out of or are
based on any untrue statement or omission or alleged untrue statement or
omission of a material fact made in reliance on and in conformity with
information relating to such Underwriter furnished in writing to the Fund by
such Underwriter expressly for use in the Registration Statement, the
Preliminary Prospectus or Prospectus. This indemnity will be in addition to any
liability that such Underwriter might otherwise have; provided, however, that in
no case shall such Underwriter be liable or responsible hereunder for any amount
in excess of the fees and commissions received by such Underwriter.
<PAGE>
(c) Any party that proposes to assert the right to be
indemnified under this Section 7 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section 7, notify
each such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission to so notify such indemnifying party
will not relieve it from any liability that it may have to any indemnified party
under the foregoing provision of this Section 7 unless, and only to the extent
that, such omission results in the forfeiture of substantive rights or defenses
by the indemnifying party. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the extent that it
elects by delivering written notice to the indemnified party promptly after
receiving notice of the commencement of the action from the indemnified party,
jointly with any other indemnifying party similarly notified, to assume the
defense of the action, with counsel reasonably satisfactory to the indemnified
party, and after notice from the indemnifying party to the indemnified party of
its election to assume the defense, the indemnifying party will not be liable to
the indemnified party for any legal or other expenses except as provided below
and except for the reasonable costs of investigation subsequently incurred by
the indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees,
disbursements and other charges of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on the advice of counsel) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party (3) a
conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. Subject to the requirements of
Investment Company Act Release No. 11330, all such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are
incurred. It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm (in addition to local counsel) admitted to practice in such
jurisdiction at any one time for all such indemnified party or parties. An
indemnifying party will not be liable for any settlement of any action or claim
effected without its written consent (which consent will not be unreasonably
withheld). No indemnifying party shall, without the prior written consent of
such indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding relating to
the matters contemplated by this
<PAGE>
Section 7 (whether or not any indemnified party is a party thereto), unless such
settlement, compromise or consent includes an unconditional release of such
indemnified party from all liability to such claimants arising or that may arise
out of such claim, action or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7 is
applicable but for any reason is held to be unavailable from the Fund, the
Investment Adviser, or the Underwriters, the Fund, the Investment Adviser and
the Underwriters will contribute to the total losses, claims, liabilities,
expenses and damages (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement (in
compliance herewith) of, any action, suit or proceeding or any claim asserted,
but after deducting any contribution received by the Fund and the Investment
Adviser from persons other than the Underwriters, such as persons who control
the Fund and the Investment Adviser within the meaning of the Securities Act or
the Exchange Act, officers of the Fund who signed the Registration Statement and
directors of the Fund, who may also be liable for contribution) to which the
Fund, the Investment Adviser and the Underwriters may be subject in such
proportion as shall be appropriate to reflect the relative benefits received by
the Fund and the Investment Adviser on the one hand and the Underwriters on the
other. The relative benefits received by the Fund and the Investment Adviser
(treated jointly for this purpose as one person) on the one hand 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 bear to the total fees and commissions received by the Underwriters.
If, but only if, the allocation provided by the foregoing sentence is not
permitted by applicable law, the allocation of contribution shall be made in
such proportion as is appropriate to reflect not only such relative benefits
referred to in the foregoing sentence but also the relative fault of the Fund
and the Investment Adviser (treated jointly for this purpose as one person) on
the one hand and the Underwriters on the other hand in connection with respect
to the statements or omissions or alleged statements or omissions that resulted
in the losses, claims, liabilities, expenses or damages (including any
investigative, legal or other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claim asserted), as well as any other relevant equitable considerations
appropriate in the circumstances. Such relative fault of the parties shall be
determined by reference to 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, the Investment Adviser or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission and
any other equitable considerations appropriate in the circumstances. The Fund,
the Investment Adviser and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 7(d) were to be determined
by pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the loss, claim, liability,
expense or damage, or action
<PAGE>
in respect thereof, referred to above in this Section 7(d) shall be deemed to
include, for purposes of this Section 7(d) any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding any other provisions of
this Section 7(d), the Underwriters shall not be required to contribute any
amount in excess of the fees and commissions received by them and no person
found guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7(d), any person who controls a party to this Agreement within the
meaning of the Securities Act will have the same rights to contribution as that
party, and each trustee of the Fund and each officer of the Fund who signed the
Registration Statement will have the same rights to contribution as the Fund,
subject in each case to the provisions hereof. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim for contribution may be
made under this Section 7(d), notify such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 7(d). No party will be liable for
contribution with respect to any action or claim settled without its written
consent (which consent shall not be unreasonably withheld). The Underwriter's
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective number of Firm Shares set forth opposite their names in
Schedule 1 (or such number of Firm Shares as determined pursuant to Section 9
hereof) and not joint.
(e) Notwithstanding any other provisions in this Section 7, no
person shall be entitled to indemnification or contribution under this Agreement
against any loss, claim, liability, expense or damage arising by reason of such
person's willful misfeasance, bad faith or gross negligence in the performance
of its duties hereunder, or by reason of such person's reckless disregard of
such person's obligations and duties hereunder.
(f) The Fund and the Investment Adviser acknowledge that the
statements with respect to (1) the sales load with respect to the sale of the
Shares as set forth on the cover page of the Prospectus and (2) the (i) list of
Underwriters and the number of Shares allocated to each, (ii) first two
sentences of the third paragraph, (iii) the sentence comprising the seventh
paragraph and (iv) the second sentence of the eighth paragraph, in each case
under the caption "Underwriting" in the Prospectus, constitute the only
information furnished in writing to the Fund by the Representatives on behalf of
the Underwriters expressly for use in such document. The Underwriters severally
confirm that these statements are correct in all material respects and were so
furnished by or on behalf of the Underwriters severally for use in the
Prospectus.
8. Termination. This Underwriting Agreement may be terminated by the
Managing Representative by notifying the Fund at any time:
<PAGE>
(a) before the later of the effectiveness of the Registration
Statement and the time when any of the Shares are first generally offered
pursuant to this Underwriting Agreement by the Managing Representative to
dealers by letter or telegram;
(b) at or before any Closing Date if, in the sole judgment of
the Managing Representative, payment for and delivery of any Shares is rendered
impracticable or inadvisable because (1) trading in the equity securities of the
Fund is suspended by the Commission or by the principal exchange that lists the
Shares, (2) trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq Stock Market shall have been suspended or
limited or minimum or maximum prices shall have been generally established on
such exchange or over-the-counter market, or, (3) additional material
governmental restrictions, not in force on the date of this Underwriting
Agreement, have been imposed upon trading in securities or trading has been
suspended on any U.S. securities exchange, (4) a general banking moratorium has
been established by U.S. federal or New York authorities or (5) any material
adverse change in the financial or securities markets in the United States or in
political, financial or economic conditions in the United States or any outbreak
or material escalation of hostilities or declaration by the United States of a
national emergency or war or other calamity or crisis shall have occurred the
effect of any of which is such as to make it, in the sole judgment of the
Managing Representative, impracticable or inadvisable to market the Shares on
the terms and in the manner contemplated by the Prospectus; or
(c) at or before any Closing Date, if any of the conditions
specified in Section 6 have not been fulfilled when and as required by this
Underwriting Agreement.
9. Substitution of Underwriters. If one or more of the Underwriters
fails to purchase on any Closing Date the Shares agreed to be purchased on such
Closing Date by such Underwriter or Underwriters and this Underwriting Agreement
has not been terminated, the Managing Representative may find one or more
substitute underwriters to purchase such Shares or make such other arrangements
as the Managing Representative deems advisable, or one or more of the remaining
Underwriters may agree to purchase such Shares in such proportions as may be
approved by the Managing Representative, in each case upon the terms set forth
in this Underwriting Agreement. If no such arrangements have been made within
36 hours after such Closing Date, and
(a) the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date does not exceed 10% of the Shares that the
Underwriters are obligated to purchase on such Closing Date, each of the
nondefaulting Underwriters will be obligated to purchase such Shares on the
terms set forth in this Underwriting Agreement in proportion to their respective
obligations under this Underwriting Agreement, or
<PAGE>
(b) the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date exceeds 10% of the Shares to be purchased by
all the Underwriters on such Closing Date, the Fund will be entitled to an
additional period of 24 hours within which to find one or more substitute
underwriters reasonably satisfactory to the Managing Representative to purchase
such Shares on the terms set forth in this Underwriting Agreement.
In any such case, either the Managing Representative or the Fund will
have the right to postpone the applicable Closing Date for not more than five
business days in order that necessary changes and arrangements (including any
necessary amendments or supplements to the Registration Statement or the
Prospectus) may be effected by the Managing Representative and the Fund. If the
number of Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters exceeds 10% of the Shares that the Underwriters are
obligated to purchase on such Closing Date, and none of the nondefaulting
Underwriters or the Fund makes arrangements pursuant to this Section within the
period stated for the purchase of the Shares that the defaulting Underwriters
agreed to purchase, this Underwriting Agreement will terminate without liability
on the part of any nondefaulting Underwriter, the Fund or the Investment
Adviser, except as provided in Sections 5(g) and 7 hereof. This Section will
not affect the liability of any defaulting Underwriter to the Fund or the
nondefaulting Underwriters arising out of such default. A substitute
underwriter will become a Underwriter for all purposes of this Underwriting
Agreement.
10. Miscellaneous.
(a) The reimbursement, indemnification and contribution
agreements in Sections 5(g) and 7 hereof and the representations of the Fund,
the Investment Adviser and the Underwriters in this Underwriting Agreement will
remain in full force and effect regardless of any termination of this
Underwriting Agreement. The reimbursement, indemnification and contribution
agreements in Sections 5(g) and 7 hereof and the representations and agreements
of the Fund, the Investment Adviser and the Underwriters in this Underwriting
Agreement shall survive the Closing Dates and shall remain in full force and
effect regardless of any investigation made by or on behalf of any Underwriter,
the Fund, the Investment Adviser or any controlling person and delivery of and
payment for the Shares.
(b) This Underwriting Agreement is for the benefit of the
Underwriters, the Fund, the Investment Adviser and their successors and assigns,
and, to the extent expressed in this Underwriting Agreement, for the benefit of
persons controlling any of the Underwriters, the Fund, the Investment Adviser
and directors and officers of the Fund, the Investment Adviser, and their
respective successors and assigns, and no other person, partnership, association
or corporation will acquire or have any right under or by virtue of this
Underwriting Agreement. The term "successors and assigns" does not include any
purchaser of the Shares from any Underwriter merely because of such purchase.
<PAGE>
(c) All notices and communications under this Underwriting
Agreement will be in writing, effective only on receipt and mailed or delivered,
by messenger, facsimile transmission or otherwise, to the Representatives in
care of PaineWebber Incorporated, Attn.: Financial Institutions Group, 1285
Avenue of the Americas, New York, New York 10019, to the Fund or the Investment
Adviser at 333 West Wacker Drive, Chicago, Illinois 60606, Attn.: Chief Legal
Officer.
(d) This Underwriting Agreement may be signed in multiple
counterparts that taken as a whole constitute one agreement.
(e) This Underwriting Agreement will be governed by and
construed in accordance with the laws of the State of New York without reference
to choice of law principles thereof.
(f) A copy of the Agreement and Declaration of Trust of the Fund
is on file with the Secretary of The Commonwealth of Massachusetts, and notice
hereby is given that this Underwriting Agreement is executed on behalf of the
Fund and that the obligations of the Fund arising out of this Underwriting
Agreement are not binding upon any of the Trustees or shareholders of the Fund
individually but are binding only upon the assets and properties of the Fund.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Fund and the Adviser and of the controlling persons,
directors and officers referred to in Section 7, and their respective successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" as used in this
Agreement shall not include a purchaser, as such purchaser, of Shares from any
of the several Underwriters.
All representations, warranties, and agreements of the Fund and the
Adviser contained herein or in certificates or other instruments delivered
pursuant hereto, shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of any Underwriter or any of its
controlling persons and shall survive delivery of and payment for the Shares
hereunder.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
<PAGE>
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
The Fund, the Adviser and the Underwriters each hereby irrevocably
waive any right they may have to a trial by jury in respect of any claim based
upon or arising out of this Agreement or the transactions contemplated hereby.
This Agreement may not be amended or otherwise modified or any
provision hereof waived except by an instrument in writing signed by the
Managing Representative, the Fund and the Adviser.
Please confirm that the foregoing correctly sets forth the agreement
among the Fund, the Investment Adviser and the several Underwriters.
Very truly yours,
Nuveen Senior Income Trust
By: /s/ Gifford R. Zimmerman
-------------------------
Name: Gifford R. Zimmerman
Title: Vice President
Nuveen Senior Loan Asset Management Inc.
By: /s/ Alan G. Berkshire
------------------------
Name: Alan G. Berkshire
Title: Vice President
Confirmed:
PaineWebber Incorporated
John Nuveen & Co. Incorporated
Deutsche Bank Securities Inc.
A.G. Edwards & Sons, Inc.
Prudential Securities Incorporated
First Union Securities, Inc.
Janney Montgomery Scott LLC
Legg Mason Wood Walker Incorporated
As Representatives of the Underwriters
c/o PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
By: PaineWebber Incorporated
<PAGE>
By: /s/ Todd A. Reit Acting on behalf of itself and
-------------------- and the Underwriters named in Schedule 1
Name: Todd A. Reit
Title: Director
<PAGE>
[LOGO OF CHASE]
----------------------------------
CUSTODY AND FUND ACCOUNTING SERVICES AGREEMENT
AMONG
NUVEEN SENIOR INCOME FUND
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
AND
CHASE GLOBAL FUNDS SERVICES COMPANY
October 26, 1999
<PAGE>
Table of Contents
-----------------
<TABLE>
<CAPTION>
Section Page
- ------- ----
<C> <S> <C>
1. Appointment; Intention of the Parties........ 1
2. Definitions.................................. 1
3. Delivery of Documents........................ 3
4. Instructions................................. 4
5. Services Provided; Use of Agents............. 5
6. Fees and Expenses............................ 6
7. Limitation of Liability and Indemnification.. 7
8. Rights over Securities; Set-off.............. 9
9. Fund Representations......................... 9
10. Term......................................... 9
11. Miscellaneous................................ 10
</TABLE>
<PAGE>
Table of Contents (continued)
-----------------------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
Schedule A -- Custody and Fund Processing Services Description.. A-1
Schedule B -- Fund Accounting Services Description.............. B-1
Schedule C -- Fees and Expenses................................. C-1
Schedule D -- Additional Funds.................................. D-1
</TABLE>
<PAGE>
CUSTODY AND FUND ACCOUNTING SERVICES AGREEMENT (this "Agreement")
dated as of October 26, 1999, by and among Nuveen Senior Income Fund, a
Massachusetts business trust (the Nuveen Senior Income Fund, together with any
other fund that may become subject to the terms of this Agreement as provided in
Section 11(m) hereof and as listed on Schedule D hereto, referred to herein as
the "Fund"), Chase Bank of Texas, National Association, a national banking
association ("Chase Texas"), and Chase Global Funds Services Company, a Delaware
corporation ("Chase Boston"; Chase Texas and Chase Boston referred to herein
together as "Chase").
W I T N E S S E T H:
WHEREAS, the Fund is registered as a non-diversified, closed-end
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Fund wishes to contract with Chase to provide certain
services with respect to the Fund;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed among the parties hereto as follows:
1. Appointment; Intention Of Parties. (a) The Fund hereby appoints Chase
Texas to act as custodian of the Fund's portfolio of loans, securities, cash and
other property and to perform certain loan processing and other services, as
provided in Section 5 of and Schedule A to this Agreement, and appoints Chase
Boston to provide certain fund accounting and related services for the Fund, as
provided in Section 5 of and Schedule B to this Agreement, for the period and on
the terms set forth herein. Chase accepts such appointment and agrees to furnish
the services herein set forth in return for the compensation as provided in
Section 6 of and Schedule C to this Agreement.
(b) This Agreement sets out the terms governing custodial,
settlement, loan tracking, fund accounting and certain other associated services
offered by Chase to the Fund. Chase will be responsible for the performance of
only those duties that are set forth in this Agreement or expressly contained in
Instructions that are consistent with the provisions of this Agreement and with
Chase's operations and procedures. The Fund acknowledges that Chase is not
providing any legal, tax or investment advice in providing the services
hereunder.
2. Definitions.
(a) As used herein, the following terms have the meaning hereinafter
stated.
"Account" has the meaning set forth in Schedule A of this Agreement.
<PAGE>
"Affiliate" means an entity controlling, controlled by, or under common
control with, Chase.
"Agent Bank" means the Lender acting on behalf of one or more Lenders for
the purpose of administering and managing a Senior Loan.
"Agreement" has the meaning set forth in the introductory paragraph of this
Agreement.
"Applicable Law" means any statute, whether national, state or local,
applicable in the United States or any other country, the rules of the
treaty establishing the European Community, any other law, rule, regulation
or interpretation of any governmental entity, any applicable common law,
and any decree, injunction, judgment, order, ruling, or writ of any
governmental entity.
"Authorized Person" means any person (including the Investment Adviser or
other agent) who has been designated by written notice from the Fund or its
designated agent to act on behalf of the Fund hereunder. Such persons will
continue to be Authorized Persons until such time as Chase receives
Instructions from the Fund or its designated agent that any such person is
no longer an Authorized Person.
"Business Day" means a day other than Saturday, Sunday or other day on
which commercial banks in Boston and Houston are authorized or required by
law to close.
"Cash Account" has the meaning set forth in Schedule A of this Agreement.
"Chase" has the meaning set forth in the introductory paragraph of this
Agreement.
"Chase Boston" has the meaning set forth in the introductory paragraph of
this Agreement.
"Chase Texas" has the meaning set forth in the introductory paragraph of
this Agreement.
"Corporate Action" means any subscription right, bonus issue, stock
repurchase plan, redemption, exchange, tender offer, or similar matter with
respect to a Financial Asset in the Securities Account or a Senior Loan in
the Loan Account that requires discretionary action by the holder, but does
not include proxy voting.
"Entitlement Holder" means the person named on the records of a Securities
Intermediary as the person having a Securities Entitlement against the
Securities Intermediary.
"Fee Schedule" has the meaning set forth in Section 11(i) hereof.
"Financial Asset" means, as the context requires, either the asset itself
or the means by which a person's claim to it is evidenced, including a
Security, a security certificate, or a Securities Entitlement. "Financial
Asset" does not include cash or Senior Loans.
2
<PAGE>
"Fund" has the meaning set forth in the introductory paragraph of this
Agreement.
"Indebtedness" has the meaning set forth in Section 8(a) hereof.
"Instructions" has the meaning set forth in Section 4(a) hereof.
"Investment Adviser" means Nuveen Senior Loan Asset Management Inc.
"Lender" means the commercial bank or other financial institution providing
financing under a Senior Loan.
"Liabilities" means any liabilities, losses, claims, costs, damages,
penalties, fines, obligations, or expenses of any kind whatsoever
(including, without limitation, reasonable attorneys', accountants',
consultants' or experts' fees and disbursements).
"Loan Account" means a custody account in the name of the Fund for any and
all Senior Loans received by Chase Texas for the account of the Fund.
"1940 Act" has the meaning set forth in the first recital of this
Agreement.
"1933 Act" has the meaning set forth in section 3(e) hereof.
"Notification" has the meaning set forth in Schedule A of this Agreement.
"SEC" has the meaning set forth in Section 3(d) hereof.
"Securities" means stocks, bonds, rights, warrants and other negotiable and
non-negotiable instruments, whether issued in certificated or
uncertificated form, that are commonly traded or dealt in on securities
exchanges or financial markets. "Securities" also means other obligations
of an issuer, or shares, participations and interests in an issuer
recognized in the country in which it is issued or dealt in as a medium for
investment and any other property as may be acceptable to Chase Texas for
the Securities Account.
"Securities Account" means each Securities custody account on Chase Texas's
records to which Financial Assets are or may be credited pursuant hereto.
"Securities Depository" has the meaning set forth in Schedule A of this
Agreement.
"Securities Entitlement" means the rights and property interest of an
Entitlement Holder with respect to a Financial Asset as set forth in Part 5
of Article 8 of the Uniform Commercial Code of the State of New York, as
the same may be amended from time to time.
3
<PAGE>
"Securities Intermediary" means Chase Texas, a Securities Depository, and
any other financial institution which in the ordinary course of business
maintains custody accounts for others and acts in that capacity.
"Senior Loans" means U.S. dollar denominated senior secured or unsecured
loans, whose interest rates float or adjust periodically based on a
benchmark interest rate, of borrowers organized or located in the United
States or countries located outside the United States.
(b) All terms in the singular will have the same meaning in the
plural unless the context otherwise provides and visa versa.
3. Delivery of Documents.
The Fund has furnished Chase with copies, properly certified or
authenticated, of the following:
(a) Resolutions of the Board of Trustees of the Fund authorizing the
appointment of Chase Texas as custodian of the Securities, Senior Loans, cash
and other property of the Fund and the appointment of Chase Texas and Chase
Boston to provide certain services to the Fund and approving this Agreement;
(b) Incumbency and signature certificates identifying and containing
the signatures of the Fund's Authorized Persons who are authorized to provide
Instructions with respect to specified matters, including corporate action
determinations, trading directions, pricing issues and net asset value
calculations;
(c) The Fund's Declaration of Trust filed with the Commonwealth of
Massachusetts and all amendments thereto and the Fund's By-Laws and all
amendments thereto;
(d) The Fund's Notification of Registration on Form N-8A under the
1940 Act as filed with the Securities and Exchange Commission ("SEC");
(e) The Fund's most recent registration statement including exhibits
on Form N-2 under the Securities Act of 1933, as amended (the "1933 Act"), and
the 1940 Act, as filed with the SEC;
(f) Copies of the Investment Advisory Agreement between the Fund and
its investment adviser;
(g) The Fund's prospectus(es) and statement(s) of additional
information relating to all funds, series, portfolios and classes, as
applicable, and all amendments and supplements thereto; and
(h) Such other agreements as the Fund may enter into from time to
time including, without limitation, securities lending agreements, futures and
commodities account
4
<PAGE>
agreements, brokerage agreements and options agreements, auditors' reports and
such opinions of counsel as Chase may reasonably request.
4. Instructions.
(a) Chase is authorized to act under this Agreement (or to refrain
from taking action) in accordance with the instructions received by Chase from
Authorized Persons, via telephone, telex, facsimile transmission, or other
teleprocess or electronic instruction or trade information system acceptable to
Chase ("Instructions"). Chase will have no responsibility for the authenticity
or propriety of any Instructions that Chase believes in good faith to have been
given by Authorized Persons or which are transmitted with proper testing or
authentication pursuant to terms and conditions that Chase may specify. The Fund
authorizes Chase to accept and act upon any Instructions received by it without
inquiry. The Fund will indemnify Chase, its officers, directors, agents and
employees, against, and hold each of them harmless from, any Liabilities that
may be imposed on, incurred by, or asserted against Chase, its officers,
directors, agents and employees as a result of any action or omission taken in
accordance with any Instructions or other directions upon which Chase is
authorized to rely under the terms of this Agreement. Unless otherwise expressly
provided, all Instructions will continue in full force and effect until canceled
or superseded.
(b) Chase may (in its sole discretion and without affecting any part
of this Section 4) seek clarification or confirmation of an Instruction from an
Authorized Person and may decline to act upon an Instruction if it does not
receive clarification or confirmation satisfactory to it. Chase will not be
liable for any loss arising from any delay while it seeks such clarification or
confirmation.
(c) In executing or paying a payment order Chase may rely upon the
identifying number (e.g., Fedwire routing number or account) of any party as
instructed in the payment order. The Fund assumes full responsibility for any
inconsistency between the name and identifying number of any party in payment
orders issued to Chase.
(d) Any Instructions delivered to Chase by telephone will promptly
thereafter be confirmed in writing by an Authorized Person. Each confirmation is
to be clearly marked "Confirmation." Chase will not be liable for having
followed such Instructions notwithstanding the failure of an Authorized Person
to send such confirmation in writing or the failure of such confirmation to
conform to the telephone Instructions received. Either party may record any of
their telephonic communications. The Fund will comply with any security
procedures reasonably required by Chase from time to time with respect to
verification of Instructions. The Fund will be responsible for safeguarding any
test keys, identification codes or other security devices that Chase will make
available to the Fund or any Authorized Person.
(e) Chase need not act upon Instructions which it reasonably believes
to be contrary to law, regulation or market practice but will be under no duty
to investigate whether any Instructions comply with Applicable Law or market
practice.
5
<PAGE>
(f) Chase has established cut-off times for receipt of some
categories of Instruction, which will be made available to the Fund. If Chase
receives an Instruction after its established cut-off time, it will attempt to
act upon the Instruction on the day requested if Chase deems it practicable to
do so or otherwise as soon as practicable after that day.
5. Services Provided; Use Of Agents.
(a) Chase will provide custody, loan processing and fund accounting
services for the Fund. A detailed description of each of the above services is
contained in Schedules A and B, respectively, to this Agreement, which Schedules
are incorporated by reference and made a part of this Agreement.
(b) Chase will maintain records relating to the services provided
hereunder in such form and manner as Chase may deem appropriate or advisable. To
the extent required by Section 31 of the 1940 Act and the rules thereunder,
Chase agrees that all such records prepared or maintained by Chase relating to
the services provided hereunder will be preserved for the periods prescribed
under Rule 31a-2 under the 1940 Act, maintained at the Fund's expense, and
copies of such records shall be made available in accordance with such Section
and rules.
(c) Chase may provide certain of its services under this Agreement
through third parties as agreed to by the Fund. Chase will not be responsible
for any loss as a result of a failure by any broker or any other third party
that it selects and retains using reasonable care to provide ancillary services
that it does not customarily provide itself.
6. Fees and Expenses.
(a) As compensation for the services rendered to the Fund pursuant to
this Agreement the Fund shall pay Chase monthly fees and expenses (including
legal fees) determined as set forth in Schedule C to this Agreement. Such fees
are to be billed monthly and shall be due and payable upon receipt of the
invoice. Except as provided in Schedule C hereto with respect to a termination
prior to October 28, 2000, upon any termination of the provision of services
under this Agreement before the end of any month, the fee for the part of the
month before such termination shall be prorated according to the proportion
which such part bears to the full monthly period and shall be payable upon the
date of such termination.
(b) For the purpose of determining fees calculated as a function of
the Fund's assets, the value of the Fund's assets and net assets shall be
computed as required by its currently effective Prospectus, generally accepted
accounting principles, and resolutions of the Board of Trustees of the Fund.
(c) The Fund may request additional services, additional processing,
additional accounts or special reports, with such specifications, requirements
and documentation as may be reasonably required by Chase. If Chase elects to
provide such services or arrange for their provision, it shall be entitled to
additional fees and expenses as the parties may mutually agree.
(d) Chase will bear its own expenses in connection with the
performance of the services under this Agreement except as provided herein or as
agreed to by the parties. The Fund
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<PAGE>
agrees to promptly reimburse Chase for any services, equipment or supplies and
the like ordered by or for the Fund through Chase and for any other expenses
that Chase may incur on the Fund's behalf at the Fund's request or as consented
to by the Fund. Expenses that may be incurred in the operation of the Fund and
that are to be borne by the Fund include, but are not limited to: taxes;
interest; brokerage fees and commissions; salaries and fees of officers,
directors and trustees who are not officers, directors, shareholders or
employees of Chase, or the Fund's investment adviser or distributor; processing
services and related fees; postage, printing and mailing costs; costs of share
certificates; advisory and administration fees; charges and expenses of pricing
and data services, independent public accountants and custodians; insurance
premiums including fidelity bond premiums; legal expenses; consulting fees;
customary bank charges and fees; costs of maintenance of trust existence;
expenses of typesetting and printing of Prospectuses for regulatory purposes and
for distribution to current shareholders of the Fund (the Fund's distributor to
bear the expense of all other printing, production, and distribution of
prospectuses and marketing materials); clearing and processing charges of
clearing corporations; costs of foreign sub-custodians and depositories;
expenses of printing and production costs of shareholders' reports and proxy
statements and materials; expenses of proxy solicitation, proxy tabulation and
annual meetings; costs and expenses of Fund stationery and forms; costs and
expenses of special telephone, customer service, other telephone expenses and
data lines and devices; costs associated with trust, shareholder, and Board
meetings; trade association dues and expenses; reprocessing costs to Chase
caused by third party errors; all expenses for microfilm, microfiche, imaging
and other data and record storage costs; and any extraordinary expenses and
other customary Fund expenses.
(e) All fees, out-of-pocket expenses, or additional charges of Chase
shall be billed on a monthly basis and shall be due and payable upon receipt of
the invoice.
(f) Chase will render, after the close of each month in which
services have been furnished, a statement reflecting all of the charges for such
month. Charges remaining unpaid after thirty (30) days from the statement date
shall bear interest from the date of the statement to the date of payment by the
Fund, at the rate of interest publicly announced from time to time by Chase
Texas as its prime rate (which rate is not intended to be the lowest rate of
interest charged by Chase Texas in connection with extensions of credit) plus
two percent per year, and all costs and expenses of effecting collection of any
such sums, including reasonable attorneys' fees, shall be paid by the Fund to
Chase.
(g) In the event that the Fund is more than sixty (60) days
delinquent in its payments of monthly billings in connection with this Agreement
(with the exception of specific amounts which may be contested in good faith by
the Fund), this Agreement may be terminated upon ninety (90) days' written
notice to the Fund by Chase. The Fund must notify Chase in writing of any
contested amounts within thirty (30) days of receipt of a billing for such
amounts. Disputed amounts are not due and payable while they are being
investigated.
7. Limitation of Liability and Indemnification. (a) Chase shall use
reasonable care in performing its duties under this Agreement. Chase shall not
be in violation of this Agreement with respect to any matter as to which it has
satisfied its duty of reasonable care.
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<PAGE>
(b) Chase shall indemnify the Fund for its direct damages, excluding
attorneys' fees and costs, to the extent they result from Chase's breach of any
representation or warranty set forth in Section 9 hereof or Chase's negligence
or willful misconduct in performing its duties as set out in this Agreement.
Nevertheless, under no circumstances shall Chase be liable for any indirect,
consequential or special damages (including, without limitation, lost profits)
of any form, whether or not foreseeable and regardless of the type of action in
which such a claim may be brought.
(c) Without limiting subsections (a) and (b) above, Chase shall not
be responsible for, and the Fund shall indemnify and hold Chase, its officers,
directors, agents and employees, harmless from and against, any and all
Liabilities incurred by Chase, any of its officers, directors, agents or
employees, in the performance of its/their duties hereunder, including but not
limited to those arising out of or attributable to:
(i) any and all actions of Chase or its officers or agents
required to be taken pursuant to this Agreement;
(ii) the reasonable reliance on or use by Chase or its officers,
directors, employees or agents of information, records or documents
furnished to it or them by or on behalf of the Fund, which are
received by Chase or its officers, directors, employees or agents and
which have been prepared or maintained by the Fund or any third party
on behalf of the Fund;
(iii) the Fund's refusal or failure to comply with the terms of
this Agreement or the Fund's lack of good faith, or its actions or
omissions involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund
hereunder;
(v) any delays, inaccuracies, errors in or omissions from
information or data provided to Chase by data, corporate action
services, pricing services, the Fund, the Investment Adviser, any
Lenders, Agent Banks or securities brokers and dealers;
(vi) the offer or sale of shares by the Fund in violation of any
requirement under the federal securities laws or regulations or the
securities laws or regulations of any state, or in violation of any
stop order or other determination or ruling by any federal agency or
any state agency with respect to the offer or sale of such shares in
such state (1) resulting from activities, actions or omissions by the
Fund or its other service providers and agents or (2) existing or
arising out of activities, actions or omissions by or on behalf of the
Fund prior to the effective date of this Agreement;
(vii) any failure of the Fund's registration statement to comply
with the 1933 Act and the 1940 Act (including the rules and
regulations thereunder) and any other applicable laws, or any untrue
statement of a material fact or omission
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<PAGE>
of a material fact necessary to make any statement therein not
misleading in a Fund's prospectuses;
(viii) any actions taken by the Fund, its investment adviser or
its distributor in compliance with, or the failure to so comply with,
applicable securities, tax, commodities and other laws, rules and
regulations; and
(ix) all actions, inactions, omissions, or errors caused by
third parties to whom Chase or the Fund has assigned any rights and/or
delegated any duties under this Agreement at the request of or as
required by the Fund, its investment advisers, its distributor,
administrator or sponsor.
Notwithstanding subsection (a) above, it is expressly understood and
agreed that Chase has no duty or obligation of reasonable care with respect to
any of the activities described in clauses (iii), (iv), (v), (vi), (vii), (viii)
or (ix) of this subsection (c).
8. Rights over Securities; Set-off.
(a) The Fund grants Chase a security interest in and a lien on the
Financial Assets held in the Securities Account and the Senior Loans held in the
Loan Account as security for any and all amounts which are now or become owing
to Chase under any provision of this Agreement, whether or not matured or
contingent ("Indebtedness").
(b) Chase will be further entitled to set any such Indebtedness off
against any cash or deposit account with Chase or any of its Affiliates of which
the Fund is the beneficial owner. Chase will notify the Fund in advance of any
such charge unless Chase reasonably believes that it might prejudice its
interests to do so and, in such event, Chase will notify the Fund promptly
afterwards.
9. Representations. (a) The Fund represents and warrants to Chase that:
(i) the Fund is a business trust, duly organized and existing and in
good standing under the laws of the Commonwealth of Massachusetts;
(ii) the Fund is authorized to enter into and perform this Agreement;
(iii) all requisite proceedings have been taken to authorize the
Fund to enter into and perform this Agreement;
(iv) the Fund is an investment company properly registered under the
1940 Act;
(v) no legal or administrative proceedings have been instituted or
threatened which would impair the Fund's ability to perform its duties and
obligations under this Agreement;
(vi) the Fund's registration statements comply in all material
respects with the 1933 Act and the 1940 Act (including the rules and regulations
thereunder) and none of the Fund's
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<PAGE>
prospectuses and/or statements of additional information contain any untrue
statement of material fact or omit to state a material fact necessary to make
the statements therein not misleading; and
(vii) the Fund's execution, delivery and performance of this
Agreement shall not cause a material breach or be in material conflict with any
other agreement or obligation of the Fund or any law or regulation applicable to
it.
(b) Each of Chase Boston and Chase Texas severally represents and
warrants to the Fund that:
(i) it is duly organized and existing under the laws of its
jurisdiction of incorporation;
(ii) it is duly qualified to carry on its business in the
Commonwealth of Massachusetts and the State of Texas, as
applicable;
(iii) it is empowered under applicable laws and by its charter
and by-laws to enter into and perform the services
described in this Agreement;
(iv) all requisite corporate action has been taken to authorize
it to enter into and perform this Agreement;
(v) it has, and will continue to have, access to the
facilities, personnel and equipment required to fully
perform its duties and obligations hereunder;
(vi) no legal or administrative proceedings have been instituted
or threatened against it which would impair its ability to
perform its duties and obligations under this Agreement;
and
(vii) its execution, delivery and performance of this Agreement
shall not cause a material breach or be in material
conflict with any other agreement or obligation of it or
any law or regulation applicable to it.
10. Term. This Agreement shall become effective on the date first
hereinabove written and may be modified or amended from time to time by mutual
agreement between the parties hereto. This Agreement shall continue in effect
unless terminated by either party on ninety (90) days' prior written notice.
Upon termination of this Agreement, the Fund shall pay to Chase such
compensation and any reasonable out-of-pocket or other reimbursable expenses
which may become due or payable under the terms hereof as of the date of
termination or after the date that the provision of services ceases, whichever
is later. If the Fund terminates this Agreement for any reason prior to October
28, 2000, the Fund shall reimburse Chase, in accordance with Schedule C, for any
conversion costs and any start-up costs incurred by Chase that are not the
obligation of the
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Fund under Section 6 of this Agreement. Sections 6 and 7 of this Agreement shall
survive the termination of this Agreement with respect to any obligations of the
parties under this Agreement.
11. Miscellaneous.
(a) Any notice required or permitted hereunder shall be in writing
and shall be deemed effective on the date of personal delivery (by private
messenger, courier service or otherwise) or upon confirmed receipt of telex or
facsimile, whichever occurs first, or upon receipt if by mail to the parties at
the following address (or such other address as a party may specify by notice to
the other):
If to the Fund:
Nuveen Senior Income Fund
333 West Wacker Drive
Chicago, IL 60603
Attention: Fund Controller
Fax: 312-917-8049
If to Chase Texas:
Chase Bank of Texas, National Association
600 Travis Street, 50th Floor
Houston, TX 77002
Attention: Capital Markets Fiduciary Services - Nuveen
Senior Income Fund
Fax: 713-216-0606
If to Chase Boston:
Chase Global Funds Services Company
73 Tremont Street
Boston, MA 02108
Attention: Karl-Otto Hartmann, General Counsel
Fax: 617-557-8616
(b) The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver nor
shall it deprive such party of the right thereafter to insist upon strict
adherence to that term or any term of this Agreement. Any waiver must be in
writing signed by the waiving party.
(c) Chase shall not be responsible or liable for any harm, loss,
expense, liability or damage of any nature suffered by the Fund, its investors,
or other third parties or for any failure or delay in performance of Chase's
obligations under this Agreement arising out of or caused, directly or
indirectly, by circumstances beyond Chase's control, including, without
limitation, an act of God, fire, flood, civil or labor disturbance, war, act of
any governmental authority or other act or threat of any authority (de jure or
de facto), legal constraint, fraud or forgery (except to the extent attributable
to the acts of Chase employees or agents), malfunction
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<PAGE>
of equipment or software (except to the extent such malfunction is primarily
attributable to Chase's negligence in maintaining the equipment or software),
failure of or the effect of rules or operations of any external funds transfer
system, inability to obtain or interruption of external communications
facilities, or any cause beyond the reasonable control of Chase. Chase shall use
reasonable efforts to minimize the likelihood of any damage, loss of data,
delays and errors resulting from uncontrollable events, and should such damage,
loss of data, delays or errors occur, Chase shall use its reasonable efforts to
mitigate the effects of such occurrence.
(d) This Agreement may be modified or amended from time to time by
mutual written agreement between the parties. No provision of this Agreement may
be changed, discharged, or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, discharge
or termination is sought.
(e) If any provision of this Agreement is invalid or unenforceable,
the balance of the Agreement shall remain in effect, and if any provision is
inapplicable to any person or circumstance it shall nevertheless remain
applicable to all other persons and circumstances.
(f) Except as hereunder provided, neither this Agreement nor any
rights or obligations hereunder may be assigned by any party without the written
consent of the other parties, which consent shall not be unreasonably withheld.
This Agreement shall inure to the benefit of and be binding upon the parties and
their respective permitted successors and assigns, including by operation of
law. Chase may, with notice to Fund but without its prior consent, assign this
Agreement or its rights or obligations hereunder to any subsidiary or affiliate
of Chase.
(g) Headings are for convenience only and are not intended to affect
interpretation.
(h) This Agreement, including the Schedules, sets out the entire
agreement between the parties in connection with the subject matter, and this
Agreement supersedes any other agreement, statement, or representation relating
to custody, whether oral or written.
(i) Chase will not disclose any confidential information concerning
the Financial Assets, Senior Loans and/or cash held for the Fund except as is
reasonably necessary to provide services to the Fund, as required by law or
regulation or the organizational documents of the issuer of any Financial Asset
or Senior Loan, or with the consent of the Fund. The information contained in
the attached Schedule C entitled Fees and Expenses (the "Fee Schedule") is
confidential and proprietary in nature. By receiving this Agreement, the Fund
agrees that none of its trustees, officers, employees or agents, without the
prior written consent of Chase, will divulge, furnish or make accessible to any
third party, except as required by law or any regulatory authority or as
permitted by the next sentence, any part of the Fee Schedule or information in
connection therewith which has been or may be made available to it. The Fund
agrees that it will limit access to the Fee Schedule and such information to
only those officers or employees with responsibilities for analyzing the
Agreement, to its counsel, to such independent consultants hired expressly for
the purpose of assisting in such analysis, and to governmental agencies. In
addition, the Fund agrees that any person to whom such information is properly
disclosed shall be informed of the confidential nature of the Fee Schedule and
the information
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relating thereto, and shall be directed to treat the same appropriately. The
terms set forth in this Section 11(i) shall continue for two years after
termination.
(j) Chase will not be required to maintain any insurance coverage for
the benefit of the Fund.
(k) This Agreement may be executed in several counterparts each of
which will be deemed to be an original and together will constitute one and the
same agreement.
(l) THIS AGREEMENT SHALL BE GOVERNED BY THE SUBSTANTIVE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
(m) In the event that John Nuveen & Company Incorporated sponsors
additional closed-end management companies investing in Senior Loans with
respect to which it desires Chase to provide services under the terms of this
Agreement, it shall so notify Chase in writing, and if Chase agrees in writing
to provide such services, such Fund or Funds shall be subject to the terms of
this Agreement and Schedules A , B and C shall be modified accordingly.
(n) The Fund shall not use Chase's name in any offering material,
shareholder report, advertisement or other material relating to the Fund, other
than for the purpose of merely identifying and describing the functions of Chase
hereunder, in a manner not approved by Chase in writing prior to such use;
provided, however, that Chase shall consent to all uses of its name required by
the SEC, any state securities commission, or any federal or state regulatory
authority; and provided, further, that in no case will such approval be
unreasonably withheld.
(o) The Fund's Declaration of Trust is on file with the Secretary of
the Commonwealth of Massachusetts. This Agreement is executed on behalf of the
Fund by the Fund's officers as officers and not individually and the obligations
imposed upon the Fund by this Agreement are not binding upon any of the Fund's
trustees, officers or shareholders individually but are binding only upon the
assets and property of the Fund.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the date first written above.
NUVEEN SENIOR INCOME FUND
By: /s/ Alan G. Berkshire
-----------------------
Name:
---------------------
Title:
--------------------
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION
By: /s/ Richard Johnson
-----------------------
Name: Richard Johnson
---------------------
Title: V.P.
--------------------
CHASE GLOBAL FUNDS
SERVICES COMPANY
By: /s/ Paul Shield
-----------------------
Name: Paul Shield
---------------------
Title: Vice President
--------------------
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SCHEDULE A
DESCRIPTION OF CUSTODY AND LOAN PROCESSING SERVICES
1. CUSTODY AND ACCOUNTS
1.1 Accounts.
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(a) Chase Texas will establish and maintain the following accounts
("Accounts"):
(i) a Loan Account in the name of the Fund for the Senior Loans
which may be received by Chase Texas for the account of the
Fund;
(ii) a Securities Account in the name of the Fund for Financial
Assets, which may be received by Chase Texas for the account of
the Fund, including as an Entitlement Holder; and
(iii) an account in the name of the Fund ("Cash Account") for any and
all cash received by Chase Texas for the account of the Fund.
(b) At the request of the Fund, additional Accounts may be opened in the
future, which will be subject to the terms of this Agreement, including a
segregated Account or Accounts:
(i) in accordance with the provisions of an agreement among the
Fund and a broker-dealer (registered under the Securities and
Exchange Act of 1934, as amended, and a member of the National
Association of Securities Dealers, Inc.) or any futures
commission merchant registered under the Commodity Exchange
Act, relating to compliance with the rules of the Options
Clearing Corporation and of any registered national securities
exchange (or the Commodity Futures Trading Commission or any
registered contract market), or of any similar organization,
regarding escrow or other arrangements in connection with
transactions by the Fund;
(ii) for the purpose of segregating cash or Financial Assets with
options purchased or sold by the Fund; and
(iii) for any other corporate purposes as per the Instruction of an
Authorized Person.
(c) In connection with opening Accounts at the request of the Fund, Chase
Texas is authorized to enter into demand deposit agreements on behalf of the
Fund.
1.2 Cash Account.
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Except as otherwise provided in Instructions acceptable to Chase
Texas, all cash held in a Cash Account established or maintained by Chase Texas
will be held during the period it is credited to the Accounts in one or more
deposit accounts at Chase Texas in which cash may be
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subject to withdrawal by check or draft. Funds credited to the Cash Account will
be transferred by Chase Texas by means of Instruction ("payment order") from an
Authorized Person to a Chase Texas administrator assigned to the Fund. Payment
orders and Instructions seeking to cancel payment orders or to amend payment
orders which are issued by telephone, telecopier or in writing or payment orders
which are not made in connection with the delivery of a Financial Asset or a
Senior Loan shall be subject to a mutually agreed security procedure (including
call-back procedures) and Chase Texas may execute or pay payment orders issued
in the Fund's name when verified by an Authorized Person in accordance with such
procedure.
1.3 Segregation of Assets; Nominee Name.
------------------------------------
(a) The Fund will deliver or cause to be delivered to Chase Texas all
Securities, Senior Loans, other property and all monies owned by it, including
payments of interest, principal and capital distributions and cash received by
it from the issuance of its shares, at any time during the period of this
Agreement. Chase Texas will not be responsible for such Securities, Senior
Loans, other property and such monies until actually received by it. All cash
delivered to Chase Texas by or on behalf of the Fund will be deposited in the
Cash Account. Chase Texas will deposit in the Loan Account all promissory notes,
assignment agreements, participation certificates and/or agreements or other
evidences of the Fund's interest in the Senior Loans, or copies of the
foregoing, as are delivered to Chase Texas by or upon the order of the Fund.
Chase Texas will identify in its records that Financial Assets credited to the
Fund's Securities Account belong to the Fund (except as otherwise may be agreed
by Chase Texas and the Fund).
(b) Chase Texas is authorized to register in the name of the Fund, Chase
Texas, a Securities Depository, or their respective nominees, such Financial
Assets as are customarily held in registered form or such Financial Assets shall
be properly endorsed and in form for transfer satisfactory to Chase Texas. The
Fund authorizes Chase Texas to hold Financial Assets in omnibus accounts and
will accept delivery of Financial Assets of the same class and denomination as
those deposited with Chase Texas. Senior Loans will remain in the name of the
Fund.
1.4 Settlement of Trades.
---------------------
When Chase Texas receives an Instruction directing settlement of a trade
that includes all information required by Chase Texas (including copies of
executed promissory notes, assignment agreements, participation certificates
and/or agreements, as applicable), with respect to Senior Loans) Chase Texas
will use reasonable care to effect such settlement as instructed. Settlement of
purchases and sales of Financial Assets and Senior Loans will be conducted in
accordance with prevailing standards of the market in which the transaction
occurs. The risk of loss will be the Fund's whenever Chase Texas delivers
Financial Assets, Senior Loans or payment in accordance with applicable market
practice in advance of receipt or settlement of the expected consideration. In
the case of the failure of the Fund's counterparty to deliver the expected
consideration as agreed, Chase Texas will contact the counterparty to seek
settlement, but Chase Texas will not be obligated to institute legal
proceedings, file proof of claim in any insolvency proceeding or take any
similar action.
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1.5 Contractual Settlement Date Accounting.
(a) Should the Fund request to utilize Chase Texas' Contractual Settlement
Date Accounting Service with respect to Financial Assets, Chase Texas will
effect book entries on a "contractual settlement date accounting" basis as
described below with respect to the settlement of trades in those markets where
Chase Texas generally offers contractual settlement day accounting.
(i) Sales: On the settlement date for a sale, Chase Texas will credit
the Cash Account with the sale proceeds of the sale and transfer
the relevant Financial Assets to an account pending settlement of
the trade if not already delivered.
(ii) Purchases: On the settlement date for the purchase (or earlier,
if market practice requires delivery of the purchase price before
the settlement date), Chase Texas will debit the Cash Account
with the settlement monies and credit a separate account. Chase
Texas then will post the Securities Account as awaiting receipt
of the expected Financial Assets. The Fund will not be entitled
to the delivery of Financial Assets that are awaiting receipt
until Chase Texas or its Securities Intermediary actually
receives them.
Chase Texas reserves the right to restrict in good faith the availability of
contractual day settlement accounting for credit reasons.
(b) Chase Texas may (in its absolute discretion) upon oral or written
notification to the Fund reverse any debit or credit made pursuant to this
Section 1.5 prior to a transaction's actual settlement, and the Fund will be
responsible for any costs or liabilities resulting from such reversal. The Fund
acknowledges that the procedures described in this sub-section are of an
administrative nature, and Chase Texas does not undertake to make loans and/or
Financial Assets available to the Fund.
1.6 Actual Settlement Date Accounting.
With respect to any sale or purchase transaction involving Senior Loans and
with respect to any sale or purchase transaction involving Financial Assets that
are not posted to the Account on the contractual settlement date as referred to
in Section 1.5, Chase Texas will post the transaction on the date on which the
cash or Financial Assets or Senior Loans received as consideration for the
transaction are actually received by Chase Texas.
1.7 Use of Depositories.
(a) Chase Texas may deposit Financial Assets with, and hold Financial
Assets in, any securities depository, settlement system, dematerialized book
entry system or similar system (collectively a "Securities Depository") on such
terms as such systems customarily operate and the Fund will provide Chase Texas
with such documentation or acknowledgements that Chase Texas may require to hold
the Financial Assets in such systems. Chase Texas will have no responsibility
for any act or omission by (or the insolvency of) any Securities Depository. In
the event the Fund incurs a loss due to the negligence, willful misconduct, or
insolvency of a Securities
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Depository, Chase Texas will make reasonable endeavors, in its discretion, to
seek recovery from the Securities Depository.
(b) Chase Texas may execute transactions involving Financial Assets
through a broker which is an Affiliate (i) in the case of the sale of a
fractional interest or (ii) if an Authorized Person directs Chase Texas to use
an affiliated broker or otherwise requests that Chase Texas select a broker for
a transaction. The affiliated broker will charge its customary commission (or
retain its customary spread) with respect to either such transaction.
1.8 Income Collection; Autocredit.
(a) Chase Texas will credit the Cash Account with income and redemption
proceeds on Financial Assets in accordance with the times notified by Chase
Texas from time to time on or after the anticipated payment date, net of any
taxes that are withheld by Chase Texas or any third party. Where no time is
specified for a particular market, income and redemption proceeds from Financial
Assets will be credited only after actual receipt and reconciliation. Chase
Texas may reverse such credits upon oral or written notification to the Fund
that Chase Texas believes that the corresponding payment will not be received by
Chase Texas within a reasonable period or such credit was incorrect.
(b) The Fund will make reasonable endeavors in its discretion to contact
appropriate parties to collect unpaid interest, dividends or redemption
proceeds.
1.9 Fractions/Redemptions by Lot.
Chase Texas may sell fractional interests in Financial Assets and credit
the Cash Account with the proceeds of the sale. If some, but not all, of an
outstanding class of Financial Asset is called for redemption, Chase Texas may
allot the amount redeemed among the respective beneficial holders of such class
of Financial Asset in any manner Chase Texas deems to be fair and equitable.
1.10 Presentation of Coupons; Certain Other Ministerial Acts.
Until Chase Texas receives Instructions to the contrary, Chase Texas will:
(i) present all Financial Assets and Senior Loans for which Chase
Texas has received notice of a call for redemption or that have
otherwise matured, and all income and interest coupons and
other income items that call for payment upon presentation;
(ii) execute in the name of the Fund such certificates as may be
required to obtain payment in respect of Financial Assets and
Senior Loans; and
(iii) exchange interim or temporary documents of title held in the
Securities Account or the Loan Account for definitive documents
of title.
A-4
<PAGE>
1.11 Overdrafts.
The Fund will have sufficient immediately available funds each day in the
Cash Account (without regard to any Cash Account investments) to pay for the
settlement of all Financial Assets and Senior Loans delivered against payment to
the Fund and credited to the Securities Account or the Loan Account. If a debit
to the Cash Account results (or will result) in a debit balance, then Chase
Texas may, in its discretion, (i) advance an amount equal to the overdraft, (ii)
reject the settlement in whole or in any part or (iii) if posted to the
Securities Account or Loan Account, reverse the posting of the Financial Assets
or Senior Loans credited to the Securities Account or the Loan Account. If Chase
Texas elects to make such an advance, the advance will be deemed a loan to the
Fund, payable on demand, bearing interest at the rate charged by Chase Texas
from time to time, for overdrafts incurred by funds similar to the Fund, from
the date of such advance to the date of payment (both after as well as before
judgment) and otherwise on the terms on which Chase Texas makes similar
overdrafts available from time to time. No prior action or course of dealing on
Chase Texas' part with respect to the settlement of transactions on the Fund's
behalf will be asserted by the Fund against Chase Texas for Chase Texas' refusal
to make advances to the Cash Account or to settle any transaction for which the
Fund does not have sufficient available funds in the Cash Account.
1.12 Corporate Actions.
(a) Chase Texas will forward Corporate Actions to the Fund and notify the
the Fund of those Corporate Actions of which Chase Texas' central corporate
actions department receives notice from the issuer, the borrower, the Agent
Bank, a Lender or other selling institution or from the Securities Depository in
which such Financial Assets are maintained or notice published in publications
and reported in reporting services routinely used by Chase Texas for this
purpose.
(b) If an Authorized Person fails to provide Chase Texas with timely
Instructions with respect to any Corporate Action, neither Chase Texas nor its
nominees will take any action in relation to that Corporate Action.
1.13 Proxy Voting.
(a) Subject to and upon the terms of this sub-section, Chase Texas will
provide the Fund with information which it receives on matters to be voted upon
at meetings of holders of Financial Assets or Senior Loans ("Notifications"),
and Chase Texas will act in accordance with the Fund's Instructions in relation
to such Notifications. If information is received by Chase Texas at its proxy
voting department too late to permit timely voting by the Fund, Chase Texas'
only obligation is to provide, so far as reasonably practicable, a Notification
(or summary information concerning a Notification) on an "information only"
basis.
(b) Chase Texas will act upon Instructions to vote on matters referred to
in a Notification, provided Instructions are received by Chase Texas at its
proxy voting department by the deadline referred to in the relevant
Notification. If Instructions are not received in a timely manner, Chase Texas
will not be obligated to provide further notice to the Fund.
A-5
<PAGE>
(c) The Fund acknowledges that the provision of proxy voting services may
be precluded or restricted under a variety of circumstances. These circumstances
include, but are not limited to: (i) the Financial Assets or Senior Loans being
on loan or out for registration; (ii) the pendency of conversion or another
corporate action; or (iii) Financial Assets or Senior Loans being held at the
Fund's request in a name not subject to the control of Chase Texas, in a margin
or collateral account at Chase Texas or another Chase Texas or broker, or
otherwise in a manner which affects voting, local market regulations or
practices, or restrictions by the issuer.
(d) Notwithstanding the fact that Chase Texas may act in a fiduciary
capacity with respect to the Fund under other agreements or otherwise hereunder,
in performing voting proxy services Chase Texas will be acting solely as the
agent of the Fund, and will not exercise any discretion with regard to such
proxy services or vote any proxy except when directed by an Authorized Person.
1.14 Statements and Information Available On-Line.
(a) Chase Texas will issue statements to the Fund at times mutually agreed
identifying the Financial Assets, Senior Loans and cash in the Accounts. Chase
Texas also will provide additional statements containing this information upon
the Fund's request. Additionally, Chase Texas will send (or make available on-
line to) the Fund an advice or notification of any transfers of cash, Financial
Assets or Senior Loans with respect to the Accounts. Chase Texas will be not be
liable with respect to any matter set forth in those portions of any such
statement (or reasonably implied therefrom) to which the Fund has not given
Chase Texas a written exception or objection within sixty (60) days of receipt
of the statement.
(b) Prices and other information obtained from third parties which may be
contained in any statement sent to the Fund or any other party will have been
obtained from the Fund's independent third-party pricing service, the Investment
Adviser, a Lender or an Agent Bank. Chase Texas does not make any representation
as to the accuracy of such information or that the prices specified necessarily
reflect the proceeds that would be received on a disposal of the relevant
Financial Assets or Senior Loans. References in this Agreement to statements
include any statements in electronic form.
(c) The Fund acknowledges that records and unaudited reports available to
it on-line will be unaudited and may not be accurate due to inaccurate pricing,
delays in updating Account records and other causes. Chase Texas will not be
liable for any loss or damage arising out of the inaccuracy of any such records
or unaudited reports accessed on-line.
1.15 Access to Chase Texas' Records.
Chase Texas will allow the Fund's independent public accountants such
reasonable access to the records of Chase Texas relating to Financial Assets and
Senior Loans as is required in connection with their examination of books and
records pertaining to the Fund's affairs.
A-6
<PAGE>
1.16 Taxation.
(a) The Fund confirms that Chase Texas is authorized to deduct from any
cash received or credited to the Cash Account any taxes or levies required by
any revenue or governmental authority for whatever reason in respect of the
Fund's Accounts.
(b) The Fund will provide to Chase Texas such certifications,
documentation, and information as it may require in connection with taxation,
and warrants that, when given, this information is true and correct in every
respect, not misleading in any way, and contains all material information. The
Fund undertakes to notify Chase Texas immediately if any information requires
updating or correcting.
(c) The Fund will be responsible for the payment of all taxes relating to
the Financial Assets in the Securities Account or the Senior Loans in the Loan
Account, and the Fund will pay, indemnify and hold Chase Texas harmless from and
against any and all liabilities, penalties, interest or additions to tax with
respect to or resulting from, any delay in, or failure by, Chase Texas to pay,
withhold or report any U.S. federal, state or local taxes or foreign taxes
imposed or to report interest, dividend or other income paid or credited to the
Cash Account, whether such failure or delay by Chase Texas to pay, withhold or
report tax or income is the result of (i) the Fund's failure to comply with the
terms of this paragraph or (ii) Chase Texas' own acts or omissions; provided
however, the Fund will not be liable to Chase Texas for any penalty or additions
to tax due as a result of Chase Texas' failure to pay or withhold tax or to
report interest, dividend or other income paid or credited to the Cash Account
solely as a result of Chase Texas' negligence.
2. LOAN PROCESSING
(a) Chase Texas will enter information with respect to the interest rate,
amortization schedule, maturity date and related information for each Senior
Loan into the "Wall Street Office" software program of Financial Computer
Software, L.P. ("WSO") selected by the Fund;
(b) The Fund will not make any changes to the WSO software program without
the approval of Chase Texas;
(c) Chase Texas will make adjustments on each Business Day to WSO to
account for principal and interest payments received on the Senior Loans and
interest rate resettings;
(d) The Fund will forward all notices received from the Investment
Adviser, a Lender or an Agent Bank with respect to the Senior Loans to Chase
Texas;
(e) Chase Texas will coordinate funding requests with the Fund in response
to Lender or Agent Bank notices pertaining to additional borrowings;
(f) Chase Texas will prepare an electronic extract of data from the WSO
database on each Business Day and deliver a copy of same to the Fund;
(g) The Fund will provide Chase Texas with written confirmation of all
pricing data on each Business Day. Chase Texas (utilizing the WSO accounting
package provided to Chase Texas
A-7
<PAGE>
by the Fund, and after receipt by Chase Texas of written confirmation of pricing
data from the Fund) will provide Chase Boston with information reasonably
requested by Chase Boston to enable Chase Boston to perform net asset value
calculations with respect to the loans on each Business Day; and
(h) Chase Texas will reconcile purchases and sales of Senior Loans and
Financial Assets with the Investment Adviser on each Business Day.
A-8
<PAGE>
SCHEDULE B
DESCRIPTION OF FUND ACCOUNTING SERVICES
Chase Boston shall provide the following accounting services to the Fund:
A. Maintenance of the books and records for the Fund's assets, including
records of all securities transactions.
B. Calculation of each Fund's, portfolios' or classes' net asset value in
accordance with the Prospectus and after receipt of written
confirmation of all pricing data from the Fund, and after the fund,
portfolio or class meets eligibility requirements, transmission to
NASDAQ and to such other entities as directed by the Fund.*
C. Accounting for dividends and interest received and distributions made
by the Fund.
D. Coordination with the Fund's independent auditors with respect to the
annual audit, and as otherwise requested by the Fund.
E. As mutually agreed upon, domestic and/or international reports.
*Prices and other information obtained from third parties which may be contained
in any statement sent to the Fund or any other party will have been obtained
from the Fund's independent third-party pricing service, the Investment Adviser,
a Lender or an Agent Bank. Chase Boston does not make any representation as to
the accuracy of such information or that the prices specified necessarily
reflect the proceeds that would be received on a disposal of the relevant
Financial Assets or Senior Loans. References in the Agreement to statements
include any statements in electronic form.
B-1
<PAGE>
SCHEDULE C
FEES AND EXPENSES
SCHEDULE D
ADDITIONAL FUNDS
<PAGE>
CLOSED-END MUTUAL FUNDS SERVICE AGREEMENT
FOR
TRANSFER AGENCY SERVICES
NUVEEN SENIOR INCOME FUND
October 26, 1999
<PAGE>
CLOSED-END MUTUAL FUNDS SERVICE AGREEMENT
Table of Contents
-----------------
<TABLE>
<CAPTION>
Section Page
- ------- ----
<C> <S> <C>
1. Appointment................................... 1
2. Representations and Warranties................ 1
3. Delivery of Documents......................... 2
4. Services Provided............................. 3
5. Fees and Expenses............................. 4
6. Limitation of Liability and Indemnification... 5
7. Term.......................................... 7
8. Notices....................................... 7
9. Waiver........................................ 8
10. Force Majeure................................. 8
11. Additional Funds.............................. 8
12. Amendments.................................... 8
13. Assignment.................................... 8
14. Severability.................................. 9
15. Governing Law................................. 9
16. Use of Chase Name............................. 9
17. Confidentiality............................... 9
18. Massachusetts Business Trust.................. 9
19. Counterparts.................................. 9
Signatures........................................... 10
</TABLE>
<PAGE>
CLOSED-END MUTUAL FUNDS SERVICE AGREEMENT
Table of Contents (continued)
-----------------------------
<TABLE>
<CAPTION>
Number of Pages
---------------
<C> <S> <C>
Schedule A -- Fees and Expenses 2
Schedule B -- List of Nuveen Funds and Jurisdictions under
which Funds are Organized 1
Schedule C -- Transfer Agency Services Description 3
EXHIBIT Dividend Reinvestment Plan
</TABLE>
<PAGE>
CLOSED-END MUTUAL FUNDS SERVICE AGREEMENT
(for Transfer Agency Services)
THIS AGREEMENT made as of October 26, 1999 by and between the NUVEEN
SENIOR INCOME FUND (and each other Nuveen fund that, from time to time, in
accordance with Section 11 of this Agreement, may be listed on Schedule B
attached hereto (the Nuveen Senior Income Fund and each other fund individually
hereinafter referred to as the "Fund") and organized under the jurisdictions set
forth on Schedule B, and THE CHASE MANHATTAN BANK ("Chase"), a New York banking
corporation.
W I T N E S S E T H:
WHEREAS, Fund is registered as a closed-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, Fund wishes to contract with Chase to provide certain
services with respect to Fund;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. Fund hereby appoints Chase to provide services for Fund,
as described hereinafter, subject to the supervision of the Board of Directors
or Trustees of Fund (the "Board"), for the period and on the terms set forth in
this Agreement. Chase accepts such appointment and agrees to furnish the
services herein set forth in return for the compensation as provided in Section
5 of and Schedule A to this Agreement.
2. Representations and Warranties.
(a) Chase represents and warrants to Fund that:
(i) Chase is a corporation, duly organized and existing as a
banking corporation under the laws of the State of New York;
(ii) Chase is duly qualified to carry on its business in the
State of New York;
(iii) Chase is empowered under applicable laws and by its
charter and by-laws to enter into and perform the services described in
this Agreement;
(iv) all requisite corporate action has been taken to authorize
Chase to enter into and perform this Agreement;
(v) Chase has, and will continue to have, access to the
facilities, personnel and equipment required to fully perform its duties
and obligations hereunder;
1
<PAGE>
(vi) no legal or administrative proceedings have been instituted
or threatened against Chase which would impair Chase's ability to perform
its duties and obligations under this Agreement; and
(vii) Chase's entrance into this Agreement shall not cause a
material breach or be in material conflict with any other agreement or
obligation of Chase or any law or regulation applicable to Chase;
(b) Fund represents and warrants to Chase that:
(i) Fund is a duly organized and existing and in good standing
under the laws of the jurisdiction set forth after its name on Schedule B
attached hereto;
(ii) Fund is empowered under applicable laws and by its charter
document and by-laws to enter into and perform this Agreement;
(iii) all requisite proceedings have been taken to authorize
Fund to enter into and perform this Agreement;
(iv) Fund is an investment company properly registered under the
1940 Act;
(v) a registration statement under the Securities Act of 1933,
as amended ("1933 Act") and the 1940 Act on Form N-2 has been filed and
will be effective and will remain effective during the term of this
Agreement, and all necessary filings under the laws of the states will have
been made and will be current during the term of this Agreement;
(vi) no legal or administrative proceedings have been instituted
or threatened which would impair Fund's ability to perform its duties and
obligations under this Agreement;
(vii) Fund's registration statement complies in all material
respects with the 1933 Act and the 1940 Act (including the rules and
regulations thereunder) and none of Fund's prospectuses and/or statements
of additional information contain any untrue statement of material fact or
omit to state a material fact necessary to make the statements therein not
misleading; and
(viii) Fund's entrance into this Agreement shall not cause a
material breach or be in material conflict with any other agreement or
obligation of Fund or any law or regulation applicable to it.
3. Delivery of Documents. Fund will promptly furnish to Chase such
copies, properly certified or authenticated, of contracts, documents and other
related information that
2
<PAGE>
Chase may request or require to properly discharge its duties. Such documents
may include but are not limited to the following:
(i) Resolutions of the Board authorizing the appointment of
Chase to provide certain services to Fund and approving this Agreement;
(ii) Fund's charter document;
(iii) Fund's by-laws;
(iv) Fund's Notification of Registration on Form N-8A under the
1940 Act as filed with the Securities and Exchange Commission ("SEC");
(v) Fund's registration statement including exhibits, as
amended, on Form N-2 (the "Registration Statement") under the 1933 Act and
the 1940 Act, as filed with the SEC;
(vi) Copies of the Investment Advisory Agreement between Fund
and its investment adviser (the "Advisory Agreement");
(vii) Opinions of counsel and auditors' reports;
(viii) Fund's prospectus(es) and statement(s) of additional
information relating to all funds, series, portfolios and classes, as
applicable, and all amendments and supplements thereto (such Prospectus(es)
and Statement(s) of Additional Information and supplements thereto, as
presently in effect and as from time to time hereafter amended and
supplemented, herein called the "Prospectuses"); and
(ix) Such other agreements as Fund may enter into from time to
time including securities lending agreements, futures and commodities
account agreements, brokerage agreements and options agreements.
4. Services Provided.
(a) Chase will provide the following services:
(i) Transfer Agency (A description of this service is contained
in Schedule C to this Agreement.)
(b) Chase will also:
(i) provide office facilities with respect to the provision of
the services contemplated herein (which may be in the offices of Chase or a
corporate affiliate of Chase);
3
<PAGE>
(ii) provide or otherwise obtain personnel sufficient for
provision of the services contemplated herein;
(iii) furnish equipment and other materials, which are necessary
or desirable for provision of the services contemplated herein; and
(iv) keep records relating to the services provided hereunder in
such form and manner as Chase may deem appropriate or advisable. To the
extent required by Section 31 of the 1940 Act and the rules thereunder,
Chase agrees that all such records prepared or maintained by Chase relating
to the services provided hereunder will be preserved for the periods
prescribed under Rule 31a-2 under the 1940 Act, maintained at Fund's
expense, and copies of such records shall be made available in accordance
with such Section and rules.
5. Fees and Expenses.
(a) As compensation for the services rendered to Fund pursuant to
this Agreement Fund shall pay Chase monthly fees determined as set forth in
Schedule A to this Agreement. Such fees are to be billed monthly and shall be
due and payable upon receipt of the invoice. Upon any termination of the
provision of services under this Agreement before the end of any month, the fee
for the part of the month before such termination shall be prorated according to
the proportion which such part bears to the full monthly period and shall be
payable upon the date of such termination.
(b) For the purpose of determining fees calculated as a function of
Fund's assets, the value of Fund's assets and net assets shall be computed as
required by its currently effective Prospectus, generally accepted accounting
principles, and resolutions of the Board.
(c) Fund may request additional services, additional processing, or
special reports, with such specifications, requirements and documentation as may
be reasonably required by Chase. If Chase elects to provide such services or
arrange for their provision, it shall be entitled to additional fees and
expenses as the parties may mutually agree.
(d) Chase will bear its own expenses in connection with the
performance of the services under this Agreement except as provided herein or as
agreed to by the parties. Fund agrees to promptly reimburse Chase for any
services, equipment or supplies and the like ordered by or for Fund through
Chase and for any other expenses that Chase may incur on Fund's behalf at Fund's
request or as consented to by Fund. Expenses that may be incurred by Chase and
that are to be borne by Fund, include, but are not limited to: taxes; interest;
brokerage fees and commissions; salaries and fees of officers, directors, or
trustees who are not officers, directors, shareholders or employees of Chase, or
Fund's distributor; postage, printing and mailing costs for all statements,
reports and communications; costs of share certificates; advisory fees; charges
and expenses of pricing and data services, independent public accountants and
custodians; insurance premiums including fidelity bond premiums; legal expenses;
consulting fees; customary bank charges and fees; clearing and processing
charges of clearing corporations; expenses of printing and production costs of
shareholders' reports and proxy statements and materials; expenses of
4
<PAGE>
proxy solicitation and annual meetings; costs and expenses of Fund stationery
and forms; customer service and other telephone expenses; costs and expenses of
telephone and data lines and devices which are specially requested by Fund;
costs associated with corporate or trust, shareholder, and Board meetings; trade
association dues and expenses; reprocessing costs to Chase caused by third party
errors; all expenses for microfilm, fiche, imaging and other data and record
storage costs; and any extraordinary expenses and other customary Fund expenses.
(e) All fees, out-of-pocket expenses, or additional charges of Chase
shall be billed on a monthly basis and shall be due and payable upon receipt of
the invoice.
(f) Chase will render, after the close of each month in which
services have been furnished, a statement reflecting all of the charges for such
month. Charges remaining unpaid after thirty (30) days from the date of the
statement shall bear interest, from the date of the statement to the date of
repayment to Chase by Fund, at Chase's Prime Rate (as announced by Chase from
time to time) plus two percent per year, and all costs and expenses of effecting
collection of any such sums, including reasonable attorney's fees, shall be paid
by Fund to Chase.
(g) In the event that Fund is more than sixty (60) days delinquent in
payments of monthly billings in connection with this Agreement (with the
exception of specific amounts which may be contested in good faith by Fund),
this Agreement may be terminated upon thirty (30) days' written notice to Fund
by Chase. Fund must notify Chase in writing of any disputed amounts within
thirty (30) days of its receipt of the billing for such amounts. Amounts
disputed in good faith are not due and payable while they are being
investigated.
6. Limitation of Liability and Indemnification.
(a) Chase shall use reasonable care in performing its duties under
this Agreement. Chase shall not be in violation of this Agreement with respect
to any matter as to which it has satisfied its duty of reasonable care.
(b) Chase shall indemnify Fund for its direct damages, excluding
attorneys fees and costs, to the extent they result from Chase's breach of any
representation or warrant hereunder or Chase's negligence or willful misconduct
in performing its duties as set out in this Agreement. Nevertheless, under no
circumstances shall Chase be liable for any indirect, consequential or special
damages (including, without limitation, lost profits) of any form, whether or
not foreseeable and regardless of the type of action in which such a claim may
be brought.
(c) Without limiting subsections (a) and (b) above, Chase shall not
be responsible for, and Fund shall indemnify and hold Chase harmless from and
against, any and all losses, damages, costs, reasonable attorneys' fees and
expenses, payments, expenses and liabilities incurred by Chase, any of its
agents, or Fund's agents in the performance of its/their duties hereunder,
including but not limited to those arising out of or attributable to:
(i) any and all actions of Chase or its officers or agents
required to be taken pursuant to this Agreement;
5
<PAGE>
(ii) the reasonable reliance on or use by Chase or its
officers or agents of information, records, or documents which
are received by Chase or its officers or agents and furnished to
it or them by or on behalf of Fund, and which have been prepared
or maintained by Fund or any third party on behalf of Fund;
(iii) Fund's refusal or failure to comply with the terms of
this Agreement or Fund's lack of good faith, or its actions, or
lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of Fund
hereunder;
(v) the taping or other form of recording of telephone
conversations or other forms of electronic communications with
investors and shareholders, or reliance by Chase on telephone or
other electronic instructions of any person acting on behalf of a
shareholder or shareholder account for which telephone or other
electronic services have been authorized;
(vi) the reliance by Chase, its officers or agents on any
share certificates which are reasonably believed to bear the
proper manual or facsimile signatures of the officers of Fund;
(vii) any delays, inaccuracies, errors in or omissions from
information or data provided to Chase by data, corporate action
pricing services or securities brokers and dealers;
(viii) the offer or sale of shares by Fund in violation of
any requirement under the Federal securities laws or regulations
or the securities laws or regulations of any state, or in
violation of any stop order or other determination or ruling by
any Federal agency or any state agency with respect to the offer
or sale of such shares in such state (1) resulting from
activities, actions, or omissions by Fund or its other service
providers and agents, or (2) existing or arising out of
activities, actions or omissions by or on behalf of Fund prior to
the effective date of this Agreement;
(ix) any failure of Fund's registration statement to comply
with the 1933 Act and the 1940 Act (including the rules and
regulations thereunder) and any other applicable laws, or any
untrue statement of a material fact or omission of a material
fact necessary to make any statement therein not misleading in a
Fund's prospectuses;
(x) the actions taken by Fund, its investment adviser, and
its distributor in compliance with applicable securities, tax,
commodities and other laws, rules and regulations, or the failure
to so comply; and
(xi) all actions, inactions, omissions, or errors caused by
third parties to whom Chase or Fund have assigned any rights
and/or delegated any duties under
6
<PAGE>
this Agreement at the request of or as required by Fund, its
investment advisers, distributor, administrator or sponsor.
Notwithstanding subsection (a) above, it is expressly understood and
agreed that Chase has no duty or obligation of reasonable care with respect to
any of the activities described in clauses (iii), (iv), (vii), (viii), (ix), (x)
or (xi) of this subsection (c).
(d) Chase is authorized to act under this Agreement (or to refrain
from taking action) in accordance with the instructions received by Chase from
Fund and its officers, employees, investors, shareholders, agents and service
providers which Chase reasonably believes to be genuine, valid and authorized
("Authorized Persons"), via telephone, facsimile transmission, or other
teleprocess or electronic instruction system acceptable to Chase
("Instructions"). Chase will have no responsibility for the authenticity or
propriety of any Instructions that Chase believes in good faith to have been
given by Authorized Persons or which are transmitted with proper testing or
authentication pursuant to terms and conditions that Chase may specify. Fund
authorizes Chase to accept and act upon any Instructions received by it from
Authorized Persons without inquiry. Fund will indemnify Chase against, and hold
it harmless from, any losses, damages, costs, reasonable attorneys' fees and
expenses, payments, expenses and liabilities incurred by Chase or any of its
agents that may be imposed on, incurred by, or asserted against Chase or its
agents as a result of any action or omission taken in accordance with any
Instructions or other directions upon which Chase is authorized to rely under
the terms of this Agreement.
7. Term.
(a) This Agreement shall become effective on the date first
hereinabove written. The Agreement may be modified or amended from time to time
by mutual agreement between the parties hereto. This Agreement shall continue in
effect until terminated by either party on prior written notice to the other
party as hereinafter provided. The terminating party in such notice to the other
party shall specify the date of termination, which shall be at least 90 days
after the date of the notice. Upon termination of this Agreement, Fund shall pay
to Chase such compensation and any reasonable out-of-pocket or other
reimbursable expenses which may become due or payable under the terms of this
Agreement as of the date of termination or after the date that the provision of
services ceases, whichever is later. If Fund terminates this Agreement for any
reason during its first year, Fund shall reimburse Chase, in accordance with
Schedule A, for any start-up costs incurred by Chase that are not otherwise
payable by Fund under Section 5 of this Agreement.
(b) Sections 5 and 6 hereof shall survive the termination of this
Agreement with respect to any obligations of the parties under this
Agreement.
8. Notices. Any notice required or permitted hereunder shall be in
writing and shall be deemed effective on the date of personal delivery (by
private messenger, courier service or otherwise) or upon confirmed receipt of
telex or facsimile, whichever occurs first, or upon receipt if by mail to the
parties at the following address (or such other address as a party may specify
by notice to the other):
7
<PAGE>
If to Fund:
John Nuveen & Co., Incorporated
333 West Wacker Drive
Chicago, IL 60606
Attention: Fund Controller
Fax: (312) 917-8049
If to Chase:
The Chase Manhattan Bank
4 New York Plaza
Nuveen Customer Service, 3rd floor
New York, New York 10004-2413
Attention: Nuveen Relationship Manager
9. Waiver. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver nor
shall it deprive such party of the right thereafter to insist upon strict
adherence to that term or any term of this Agreement. Any waiver must be in
writing signed by the waiving party.
10. Force Majeure. Chase shall have no liability for any damage, loss,
expense or liability of any nature that Fund may suffer or incur, caused by an
act of God, fire, flood, civil or labor disturbance, war, act of any
governmental authority or other act or threat of any authority (de jure or de
facto), legal constraint, fraud or forgery (except to the extent attributable to
the acts of Chase employees or agents), malfunction of equipment or software
(except to the extent such malfunction is primarily attributable to Chase's
negligence in maintaining the equipment or software), failure of or the effect
of rules or operations of any external funds transfer system, inability to
obtain or interruption of external communications facilities, or any cause
beyond the reasonable control of Chase. Chase shall use reasonable efforts to
minimize the likelihood of any damage, loss of data, delays and errors resulting
from uncontrollable events, and should such damage, loss of data, delays or
errors occur, Chase shall use its reasonable efforts to mitigate the effects of
such occurrence.
11. Additional Funds. In the event that John Nuveen & Company Incorporated
sponsors additional closed-end management companies with respect to which it
desires Chase to provide services under the terms of this Agreement, it shall so
notify Chase in writing, and if Chase agrees in writing to provide such
services, such Fund or Funds shall be subject to the terms of this Agreement and
Schedules A, B and C shall be modified accordingly.
12. Amendments. This Agreement may be modified or amended from time to
time by mutual written agreement between the parties. No provision of this
Agreement may be changed, discharged, or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
change, discharge or termination is sought.
8
<PAGE>
13. Assignment. Except as hereunder provided, neither this Agreement nor
any rights or obligations hereunder may be assigned by either party without the
written consent of the other party, which consent shall not be unreasonably
withheld. This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns. Chase may, with
notice to Fund but without its prior consent, assign this Agreement or its
rights or obligations hereunder to any subsidiary or affiliate of Chase.
14. Severability. If any provision of this Agreement is invalid or
unenforceable, the balance of the Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance it shall nevertheless
remain applicable to all other persons and circumstances.
15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK.
16. USE OF CHASE NAME. Fund shall not use Chase's name in any offering
material, Shareholder report, advertisement or other material relating to Fund,
other than for the purpose of merely identifying and describing the functions of
Chase hereunder, in a manner not approved by Chase in writing prior to such use;
provided, however, that Chase shall consent to all uses of its name required by
the Securities and Exchange Commission, any state securities commission, or any
federal or state regulatory authority; and provided, further, that in no case
will such approval be unreasonably withheld.
17. CONFIDENTIALITY. The information contained in the attached Schedule A
entitled Transfer Agency Fees and Expenses (the ("Fee Schedule") is confidential
and proprietary in nature. By receiving this Agreement, Fund agrees that none of
its trustees, officers, employees, or agents, without the prior written consent
of Chase, will divulge, furnish or make accessible to any third party, except as
required by law or any regulatory authority or as permitted by the next
sentence, any part of the Fee Schedule or information in connection therewith
which has been or may be made available to it. Fund agrees that it will limit
access to the Fee Schedule and such information to only those officers or
employees with responsibilities for analyzing the Agreement, to its counsel, to
such independent consultants hired expressly for the purpose of assisting in
such analysis, and to governmental agencies. In addition, Fund agrees that any
person to whom such information is properly disclosed shall be informed of the
confidential nature of the Fee Schedule and the information relating thereto,
and shall be directed to treat the same appropriately. The terms set forth in
this Section 17 shall continue for two years after termination.
18. MASSACHUSETTS BUSINESS TRUST. The Fund's Declaration of Trust is on
file with the Secretary of the Commonwealth of Massachusetts. This Agreement is
executed on behalf of Fund by Fund's officers as officers and not individually
and the obligations imposed upon Fund by this Agreement are not binding upon any
of Fund's Trustees, officers or shareholders individually but are binding only
upon the assets and property of Fund.
19. COUNTERPARTS. This Agreement may be executed in counterparts each of
which shall be deemed to be an original and together shall constitute one and
the same agreement
9
<PAGE>
[remainder of page intentionally left blank. Next page is signature page]
10
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the date first written above.
NUVEEN SENIOR INCOME FUND
By: /s/ Alan G. Berkshire
------------------------
Name:
----------------------
Title:
---------------------
THE CHASE MANHATTAN BANK
By: /s/ Marion R. Scida
------------------------
Name: Marion R. Scida
----------------------
Title: Vice President
---------------------
11
<PAGE>
CLOSED-END MUTUAL FUNDS SERVICE AGREEMENT
SCHEDULE A
TRANSFER AGENCY FEES AND EXPENSES
FOR
NUVEEN SENIOR INCOME FUND
<PAGE>
CLOSED-END MUTUAL FUNDS SERVICE AGREEMENT
SCHEDULE B
(As of October 29, 1999)
Nuveen Senior Income Fund, a non-diversified, closed end management investment
company organized as a Massachusetts business trust.
<PAGE>
CLOSED-END MUTUAL FUNDS SERVICE AGREEMENT
SCHEDULE C
DESCRIPTION OF TRANSFER AGENCY SERVICES
The following is a general description of the transfer agency services
Chase shall provide to Fund.
A. Shareholder Recordkeeping. Maintain records showing for Fund
shareholder the following: (i) name, address, appropriate tax
certification and tax identifying number; (ii) number of shares/1/ of
Fund, portfolio or class; (iii) historical information including, but
not limited to, dividends paid, date and price of all transactions
including individual redemptions, based upon appropriate supporting
documents; and (iv) any dividend reinvestment order, application,
specific address, payment and processing instructions and
correspondence relating to the current maintenance of the account.
In case of any requests or demands for the inspection of the
shareholder records of Fund, Chase will endeavor to notify Fund and to
secure instructions from an authorized officer of Fund as to such
inspection. Chase reserves the right, however, to exhibit the
shareholder records to any person whenever it is advised by its
counsel that it may be held liable for the failure to exhibit the
shareholder records to such person.
B. Share Issuance. Record the issuance of shares of Fund, portfolio or
class. Except as specifically agreed in writing between Chase and
Fund, Chase shall have no obligation when countersigning and issuing
and/or crediting shares to take cognizance of any other laws relating
to the issue and sale of such shares except insofar as policies and
procedures of the Stock Transfer Association recognize such laws.
A. Transfer and Redemption Orders. Process and record all orders for the
transfer of shares of Fund and, when applicable, for the redemption of book-
entry shares of Fund (Fund will arrange separately for the redemption of any
certificated shares) in accordance with Fund's current prospectus and
customary transfer agency policies and procedures, including electronic
transmissions which Fund acknowledges it has authorized, or in accordance
with any instructions of Fund or its agents which Chase reasonably believes
to be authorized.
Page 1 of 3
- ----------------
/1/ All references to "shares" shall include both certificated shares and book
entry shares.
<PAGE>
D. Shareholder Communications. Transmit all communications by Fund to its
shareholders promptly following the delivery by Fund of the material
to be transmitted by mail, telephone, courier service or
electronically.
Mailing services provided to Fund shall consist of (i) annual
preparation of a list of Shareholders owning Shares, (ii) semi-annual
distribution of a report to Shareholders, and (iii) upon request of
Fund, mailing to each Shareholder such other information relating to
Fund as Fund may reasonably request.
E. Share Certificates. If permitted by Fund policies, and if a
shareholder of Fund requests a certificate representing shares, Chase
as Transfer Agent, will countersign and mail a share certificate to
the investor at his/her address as it appears on Fund's shareholder
records or as otherwise directed by the registered holder.
Fund shall supply Chase with sufficient blank Share certificates. Such
blank Share certificates shall be properly signed, manually or by
facsimile signature, by duly authorized officers of Fund.
Notwithstanding the death, resignation or removal of any officer of
Fund authorized to sign such share certificates, Chase may continue to
countersign certificates which bear the manual or facsimile signature
of such officer until otherwise directed by Fund. Chase shall
establish and maintain facilities and procedures reasonably acceptable
to Fund for the safekeeping of Shares certificates and facsimile
signature imprinting devices, if any, and for the preparation or use
and for keeping account of such certificates and devices. Chase agrees
to establish and maintain facilities and procedures that are
reasonably acceptable to Fund and Chase for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices,
if any, and for the preparation or use, and for keeping account of,
such certificates, forms and devices.
F. Shareholder and Broker-Dealer Correspondence. Acknowledge and respond
to all correspondence from shareholders and broker-dealers relating to
share accounts and undertake such other shareholder and broker-dealer
correspondence as may from time to time be mutually agreed upon.
G. Tax Reporting. Chase shall issue appropriate shareholder tax forms as
required.
H. Dividend Disbursing. Chase will prepare and mail checks, place credit
income and capital gain payments to shareholders. Fund will advise
Chase of the declaration of any dividend or distribution and the
record and payable date thereof at least five (5) days prior to the
record date. Chase will, on or before the payment date of any such
dividend or distribution, notify Fund's Custodian of the
Page 2 of 3
<PAGE>
estimated amount required to pay any portion of such dividend or
distribution payable in cash, and on or before the payment date of
such distribution, Fund will instruct its Custodian to make available
to Chase sufficient funds for the cash amount to be paid out. If a
shareholder is entitled to receive additional shares by virtue of any
such distribution or dividend, appropriate credits will be made to
each shareholder's account.
In addition to the forgoing, dividend and distribution payment
services are composed of (i) inserting any enclosure supplied by Fund
with each dividend or distribution check; (ii) replacing lost dividend
checks; (iii) providing photocopies of canceled checks when requested
by Shareholders; (iv) reconciling paid and outstanding checks; (v)
coding as "undeliverable" certain accounts to suppress mailing of
dividend checks to same; (vi) processing and record keeping of
accumulated uncashed dividends; (vii) furnishing requested dividend
and distribution information to Shareholders; and (viii) withholding
from such payments any taxes required to be withheld by Chase under,
and remitting the same in accordance with, applicable provisions of
the Internal Revenue Code.
I. Dividend Reinvestment Plan Services. Chase will act as agent for
shareholders under Fund's Dividend Reinvestment Plan, a copy of which
is attached to the Agreement.
J Escheatment. Chase shall provide abandoned property reporting services
under applicable state abandoned property laws.
K. Telephone Services. Chase will provide staff coverage, training and
supervision in connection with Fund's telephone line for shareholder
inquiries, and will respond to inquiries concerning shareholder
records, transactions processed by Chase, procedures to effect the
shareholder records and inquiries of a general nature relative to
shareholder services.
L. Requests for Information. Chase will provide all required information
in a timely fashion in support of regulatory filings.
M. Regulatory Changes. Chase will provide assistance with the analysis
and implementation of any changes required by regulatory bodies.
<PAGE>
Exhibit n
Consent of Independent Public Accountants
To the Board of Trustees and Shareholder
Nuveen Senior Income Fund
We consent to the use of our report and the reference to our firm under the
heading "Experts" in the Statement of Additional Information.
/s/ KPMG LLP
Chicago, Illinois
November 1, 1999
<PAGE>
Nuveen Senior Income Fund
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a trustee of the
above-referenced organizations, hereby constitutes and appoints ALAN G.
BERKSHIRE, LARRY W. MARTIN and GIFFORD R. ZIMMERMAN, and each of them (with full
power to each of them to act alone) his true and lawful attorney-in-fact and
agent, for him on his behalf and in Registration Statements on Form N-2 under
the Securities Act of 1933 and the Investment Company Act of 1940, including any
amendment or amendments thereto, with all exhibits, and any and all other
documents required to be filed with any regulatory authority, federal or state,
relating to the registration thereof, or the issuance of shares thereof, without
limitation, granting unto said attorneys, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises in order to effectuate the same as fully to
all intents and purposes as he might or could do if personally present, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned trustee of the above-referenced
organizations has hereunto set his hand this 31st day of August, 1999.
/s/ Timothy R. Schwertfeger
---------------------------
Timothy R. Schwertfeger
STATE OF ILLINOIS )
-------- )SS
COUNTY OF COOK )
--------
On this 31st day of August, 1999, personally appeared before me, a Notary Public
in and for said County and State, the person named above who is known to me to
be the person whose name and signature is affixed to the foregoing Power of
Attorney and who acknowledged the same to be his voluntary act and deed for the
intent and purposes therein set forth.
"OFFICIAL SEAL"
Virginia L. Corcoran /s/ Virginia L. Corcoran
Notary Public, State of Illinois ------------------------
My Commission Expires: 10/27/01 Notary Public
<PAGE>
NUVEEN SENIOR INCOME FUND
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a trustee of the
above-referenced organization, hereby constitutes and appoints TIMOTHY R.
SCHWERTFEGER, ALAN G. BERKSHIRE, LARRY W. MARTIN and GIFFORD R. ZIMMERMAN, and
each of them (with full power to each of them to act alone) his true and lawful
attorney-in-fact and agent, for him on his behalf and in Registration Statements
on Form N-2 under the Securities Act of 1933 and the Investment Company Act of
1940, including any amendment or amendments thereto, with all exhibits, and any
and all other documents required to be filed with any regulatory authority,
federal or state, relating to the registration thereof, or the issuance of
shares thereof, without limitation, granting unto said attorneys, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises in order to
effectuate the same as fully to all intents and purposes as he might or could do
if personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned trustee of the above-referenced organization
has hereunto set his hand this 15th day of September, 1999.
/s/ James E. Bacon
-----------------------
James E. Bacon
STATE OF ILLINOIS )
---------- ) SS
COUNTY OF COOK )
---------
On this 15th day of September, 1999, personally appeared before me, a Notary
Public in and for said County and State, the person named above who is known to
me to be the person whose name and signature is affixed to the foregoing Power
of Attorney and who acknowledged the same to be his voluntary act and deed for
the intent and purposes therein set forth.
"OFFICIAL SEAL"
Virginia L. Corcoran /s/ Virginia L. Corcoran
Notary Public, State of Illinois ---------------------------
My Commission Expires: 10/27/01 Virginia L. Corcoran
<PAGE>
NUVEEN SENIOR INCOME FUND
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a trustee of the
above-referenced organization, hereby constitutes and appoints TIMOTHY R.
SCHWERTFEGER, ALAN G. BERKSHIRE, LARRY W. MARTIN and GIFFORD R. ZIMMERMAN, and
each of them (with full power to each of them to act alone) his true and lawful
attorney-in-fact and agent, for him on his behalf and in Registration Statements
on Form N-2 under the Securities Act of 1933 and the Investment Company Act of
1940, including any amendment or amendments thereto, with all exhibits, and any
and all other documents required to be filed with any regulatory authority,
federal or state, relating to the registration thereof, or the issuance of
shares thereof, without limitation, granting unto said attorneys, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises in order to
effectuate the same as fully to all intents and purposes as he might or could do
if personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned trustee of the above-referenced organization
has hereunto set his hand this 15th day of September, 1999.
/s/ Jack B. Evans
-----------------------
Jack B. Evans
STATE OF ILLINOIS )
---------- ) SS
COUNTY OF COOK )
---------
On this 15th day of September, 1999, personally appeared before me, a Notary
Public in and for said County and State, the person named above who is known to
me to be the person whose name and signature is affixed to the foregoing Power
of Attorney and who acknowledged the same to be his voluntary act and deed for
the intent and purposes therein set forth.
"OFFICIAL SEAL"
Virginia L. Corcoran /s/ Virginia L. Corcoran
Notary Public, State of Illinois ---------------------------
My Commission Expires: 10/27/01 Notary Public
<PAGE>
NUVEEN SENIOR INCOME FUND
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a trustee of the
above-referenced organization, hereby constitutes and appoints TIMOTHY R.
SCHWERTFEGER, ALAN G. BERKSHIRE, LARRY W. MARTIN and GIFFORD R. ZIMMERMAN, and
each of them (with full power to each of them to act alone) his true and lawful
attorney-in-fact and agent, for him on his behalf and in Registration
Statements on Form N-2 under the Securities Act of 1933 and the Investment
Company Act of 1940, including any amendment or amendments thereto, with all
exhibits, and any and all other documents required to be filed with any
regulatory authority, federal or state, relating to the registration thereof, or
the issuance of shares thereof, without limitation, granting unto said
attorneys, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
in order to effectuate the same as fully to all intents and purposes as he might
or could do if personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned trustee of the above-referenced organization
has hereunto set his hand this 17 day of September, 1999.
/s/ William L. Kissick
-------------------------------
William L. Kissick
STATE OF ILLINOIS )
)SS
COUNTY OF COOK )
On this 17th day of September, 1999, personally appeared before me, a Notary
Public in and for said County and State, the person named above who is known to
me to be the person whose name and signature is affixed to the foregoing Power
of Attorney and who acknowledged the same to be his voluntary act and deed for
the intent and purposes therein set forth.
/s/ Virginia L. Corcoran
(SEAL) --------------------------------
Notary Public
My Commission Expires: 10/27/01
<PAGE>
NUVEEN SENIOR INCOME FUND
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a trustee of the
above-referenced organization, hereby constitutes and appoints TIMOTHY R.
SCHWERTFEGER, ALAN G. BERKSHIRE, LARRY W. MARTIN and GIFFORD R. ZIMMERMAN, and
each of them (with full power to each of them to act alone) his true and lawful
attorney-in-fact and agent, for him on his behalf and in Registration Statements
on Form N-2 under the Securities Act of 1933 and the Investment Company Act of
1940, including any amendment or amendments thereto, with all exhibits, and any
and all other documents required to be filed with any regulatory authority,
federal or state, relating to the registration thereof, or the issuance of
shares thereof, without limitation, granting unto said attorneys, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises in order to
effectuate the same as fully to all intents and purposes as he might or could do
if personally present, hereby ratifying and confirming all that said attorneys-
in-fact and agents, or any of them, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned trustee of the above-referenced organization
has hereunto set his hand this 15th day of September, 1999.
/s/ Thomas E. Leafstrand
------------------------
Thomas E. Leafstrand
STATE OF ILLINOIS )
-------- )SS
COUNTY OF COOK )
---- )
On this 15th day of September, 1999, personally appeared before me, a Notary
Public in and for said County and State, the person named above who is known to
me to be the person whose name and signature is affixed to the foregoing Power
of Attorney and who acknowledged the same to be his voluntary act and deed for
the intent and purposes therein set forth.
"OFFICIAL SEAL"
Virginia L. Corcoran /s/ Virginia L. Corcoran
Notary Public, State of Illinois ------------------------
My Commission Expires: 10/27/01 Notary Public
<PAGE>
NUVEEN SENIOR INCOME FUND
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a trustee of the
above-referenced organization, hereby constitutes and appoints TIMOTHY R.
SCHWERTFEGER, ALAN G. BERKSHIRE, LARRY W. MARTIN and GIFFORD R. ZIMMERMAN, and
each of them (with full power to each of them to act alone) her true and lawful
attorney-in-fact and agent, for her on her behalf and in Registration Statements
on Form N-2 under the Securities Act of 1933 and the Investment Company Act of
1940, including any amendment or amendments thereto, with all exhibits, and any
and all other documents required to be filed with any regulatory authority,
federal or state, relating to the registration thereof, or the issuance of
shares thereof, without limitation, granting unto said attorneys, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises in order to
effectuate the same as fully to all intents and purposes as he might or could do
if personally present, hereby ratifying and confirming all that said attorneys-
in-fact and agents, or any of them, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned trustee of the above-referenced organization
has hereunto set her hand this 15th day of September, 1999.
/s/ Sheila W. Wellington
------------------------------
Sheila W. Wellington
STATE OF ILLINOIS )
---------- )SS
COUNTY OF COOK )
---------
On this 15th day of September, 1999, personally appeared before me, a Notary
Public in and for said County and State, the person named above who is known to
me to be the person whose name and signature is affixed to the foregoing Power
of Attorney and who acknowledged the same to be his voluntary act and deed for
the intent and purposes therein set forth.
"OFFICIAL SEAL"
Virginia L. Corcoran /s/ Virginia L. Corcoran
Notary Public, State of Illinois ------------------------------
My Commission Expires: 10/27/01 Notary Public
