Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the Trust, the Advisor and the Underwriter. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATES, INC. By:____________________________________ Confirmed as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXX. By:______________________ Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that: a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement; b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law; c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus; d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission; e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein); f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents; g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act; h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required; i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations; j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments; k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company; m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that: a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus; b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus; d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required; e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body; f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 2 contracts
Samples: Underwriting Agreement (Colonial Municipal Income Trust), Underwriting Agreement (Colonial Municipal Income Trust)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New YorkFlorida without reference to choice of law principles thereunder. This Agreement may be signed in various counterparts counterparts, which together shall constitute one and the same instrument. If signed in counterparts, this This Agreement shall not become be effective unless when, but only when, at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End The Company and the Underwriters each hereby irrevocably waive any right they may have to a trial by jury in respect to any claim based upon or arising out of Text] 22 this Agreement or the transactions contemplated hereby. Please confirm that the foregoing correctly sets forth the agreement among the Trust, the Advisor Company and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATESMERCANTILE BANK CORPORATION --------------------------------------- Gerald R. Johnson, INC. By:____________________________________ Confirmed Jr. Chairmxx xxx Xxxxx Xxxxxxxxx Officer CONFIRMED and AGREED as of the date first above mentioned, on behalf of the Representative and the other several Underwriters named in Schedule I hereto. SALOXXX XXXXX XXXNXX XXXRAYMOND JAMES & ASSOCIATES, INC. By:: ------------------------------------ Authorized Representative SCHEDULE I Number Name Firm Shares ---- ----------- Raymond James & Associates, Inc........................................................... Stifel, Nicolaus & Company, Incorporated.................................................. Oppenheimer & Co. Inc..................................................................... --------- TOTAL: 1,000,000 ========= SCHEDULE II SUBSIDIARIES OF THE COMPANY State or Jurisdiction of Name Incorporation or Charter ---- ------------------------ Mercantile Bank of West Michigan Michigan Mercantile Bank Mortgage Company Michigan Mercantile BIDCO, Inc. Michigan Mercantile Insurance Center, Inc. Michigan MBWM Capital Trust I Delaware EXHIBIT A September ______________________ Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number , 2003 MERCANTILE BANK CORPORATION 5650 Byron Center Ave., S.W. Wyoming, Michigan 49509 RAYMOND JAMES & XXXXXXXXXX, INC. As Representative of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES the Several Undexxxxxxxs x/x Raymond James & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & GrayAssociates, counsel for the TrustInc. 880 Carillon Parkway St. Petersburg, dated the Closing Date FL 33716 RE: MERCAXXXXX XXXX XXXXXXXXXXX (XXX "XXXXXXX") -- XXXK-UP AGREEMENT Ladies and addressed Gentlemen: This letter is delivered to you pursuant to the UnderwriterUnderwriting Agreement (the "Underwriting Agreement") to be entered into by the Company, in form as issuer, and substance satisfactory Raymond James & Associates, Inc., the representative (the "Representatxxx") xf xxxxain underwriters (the "Underwriters") to be named therein. Upon the terms and subject to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms conditions of the Underwriting Agreement, will be validly issuedthe Underwriters intend to effect a public offering of Common Stock, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rightsno par value, interests, powers and preferences of the Company (the "Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h"), as described in and contemplated by the case registration statement of the Company on Form S-3, File No. 333-107814 (as the same may be hereafter amended, the "Registration Statement"), as filed with the Securities and Exchange Commission on August 8, 2003 (the "Offering"). The undersigned recognizes that it is in the best financial interests of the undersigned, as an officer or director, or an owner of stock, options, warrants or other securities of the Company (the "Company Securities"), that the Company complete the proposed Offering. The undersigned further recognizes that the Company Securities held by the undersigned are, or may be; , subject to certain restrictions on transferability, including those imposed by United States federal securities laws. Notwithstanding these restrictions, the undersigned has agreed to enter into this letter agreement to further assure the Underwriters that the Company Securities of the undersigned, now held or hereafter acquired, will not enter the public market at a time that might impair the underwriting effort. Therefore, as an inducement to the best knowledge Underwriters to execute the Underwriting Agreement, the undersigned hereby acknowledges and agrees that the undersigned will not (i) directly or indirectly, offer, sell, contract to sell, pledge, grant any option to purchase or otherwise dispose of such counsel(collectively, no stop order suspending its effectiveness a "Disposition") any Company Securities, or order pursuant any securities convertible into or exercisable or exchangeable for, or any rights to Section 8(e) purchase or otherwise acquire, any Company Securities held or owned of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending record or threatened beneficially by the Commission;
e. The Registration Statement and undersigned on or acquired by the Prospectus comply as to form in all material respects with undersigned after the provisions of the 1933 Actdate hereof, (collectively, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and Lock-Up Shares"Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to for a period commencing on the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, ending 90 days after the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation effective date of the Registration Statement, and based on inclusive (the foregoing"Lock-Up Period"), while such counsel without the prior written consent of Raymond James & Associates, Inc. or (ii) exercise or seek to exercise xx xxxxcxxxxx in any manner any rights of any nature that the undersigned has not themselves independently verified or may have hereafter to require the accuracy Company to register under the Act the undersigned's sale, transfer or completeness other disposition of any of the Lock-Up Shares or other securities of the Company held by the undersigned, or to otherwise verified and is not passing upon and assumes no responsibility for participate as a selling securityholder in any manner in any registration effected by the Company under the Act, including under the Registration Statement Statement, during the Lock-Up Period. The foregoing restrictions are expressly agreed to preclude the undersigned from engaging in any hedging, collar (whether or not for any consideration) or other transaction that is designed to or reasonably expected to lead or result in a Disposition of Lock-Up Shares during the Prospectus Lock-Up Period, even if such Lock-Up Shares would be disposed of by someone other than such holder. Such prohibited hedging or other transactions as referred to in the prior sentence would include any short sale or any purchase, sale or grant of any right (including any put or call option or reversal or cancellation thereof) with respect to any Lock-Up Shares or with respect to any security (other than as set forth in a broad-based market basket or index) that includes, relates to or derives any significant part of its value from Lock-Up Shares. Notwithstanding the agreement not to make any Disposition during the Lock-Up Period, you have agreed that the foregoing restrictions shall not apply to:
(f), (g1) and (m) above) the Company Securities being offered in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described prospectus included in the Registration Statement and the ProspectusStatement;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions (2) any grant or exercise of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor options pursuant to the Company's stock option plans, or the surrender of Company Securities to the Company as consideration paid to exercise any or all of the undersigned's options to purchase Company Securities granted by the Company; or
(3) any Company Securities transferred by the undersigned pursuant to a bona fide gift, provided that the donee agrees to be bound by the terms of this Lock-up Agreement unless otherwise agreed to by the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingRepresentative.
Appears in 1 contract
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New YorkWisconsin without reference to conflict of law principles thereunder. This Agreement may be signed in various counterparts which together shall constitute one and the same instrument. If signed in counterparts, this Agreement and shall not become be effective unless when at least one counterpart hereof shall have been executed and delivered by or on behalf of each party hereto. [End of Text] 22 Please confirm that If the foregoing correctly sets forth is in accordance with your understanding of our agreement, kindly sign and return to us the enclosed duplicates hereof, whereupon it will become a binding agreement among the Trust, the Advisor Company and the Underwriterseveral Underwriters, including the Representatives, all in accordance with its terms. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATES, INC. By:____________________________________ Confirmed : /s/ Bxxxxxx X. Bolens Name: Bxxxxxx X. Bolens Title: Vice President and Treasurer The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXXwritten. By:______________________ Managing Director 23 SCHEDULE : RXXXXX X. XXXXX & CO. INCORPORATED Acting as Representatives of the several Underwriters (including themselves) identified in Schedule I COLONIAL MUNICIPAL INCOME TRUST annexed hereto. By: /s/ Lxxxx X. Xxxxx Authorized Representative Name of Underwriter to be Purchased RXXXXX X. XXXXX & CO. INCORPORATED 2,000,000 CREDIT SUISSE SECURITIES (USA) LLC 800,000 WACHOVIA CAPITAL MARKETS, LLC 800,000 BMO CAPITAL MARKETS CORP. 400,000 Total 4,000,000 Final Term Sheet In the event of an inconsistency between this Term Sheet and the preliminary prospectus supplement dated June 5, 2006, you should rely on the information in this Term Sheet. Issuer: Bxxxx Corporation Common Stock Symbol: BRC Title of Securities: Class A Nonvoting Common Stock Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Offered: 4,000,000 Price to Public: $ 36.00 Class A Nonvoting Common Stock outstanding after the Offering*: 49,462,077 Over-allotment Option: 600,000 Underwriters: Rxxxxx X. Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received Co. Credit Suisse Wachovia Securities BMO Capital Markets *Based on the Closing Date an opinion number of Ropes & Grayshares of Class A Nonvoting Common Stock outstanding as of April 30, counsel 2006. The issuer has filed a registration statement (including a prospectus) with the SEC for the Trustoffering to which this communication relates. Before you invest, dated you should read the Closing Date prospectus in that registration statement and addressed other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EXXXX on the SEC Web site at wxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws prospectus if you request it by calling collect (000) 000-0000. Domestic Subsidiaries of the Commonwealth Company *Designates Significant Subsidiary Bxxxx Worldwide, Inc.* Wisconsin Tricor Direct, Inc. (100%) Tricor Direct, Inc.* Delaware Bxxxx Corporation (100%) Bxxxx International Co. Wisconsin Bxxxx Worldwide, Inc. (100%) Bxxxx Investment Co. Nevada Tricor Direct, Inc. (100%) Emed Co, Inc.* New York Tricor Direct, Inc. (100%) Worldmark of Massachusetts with full power and authority to ownWisconsin, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized andInc. Delaware Bxxxx Corporation (100%) Pxxxxx Systems, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting AgreementInc., will be validly issueddba Electromark New York Bxxxx Worldwide, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rightsInc. (100%) TruMed Technologies, interestsInc. Minnesota Bxxxx Worldwide, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or Inc. (h100%), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Brady Corp)
Applicable Law; Counterparts. This Agreement shall be governed ---------------------------- by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the Trust, the Advisor Company and the UnderwriterInitial Purchasers. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATESAMETEK, INC. By:____________________________________ : --------------------------- Name: Title: Confirmed as of the date first above mentioned. SALOXXX XXXXXXX XXXXX XXXNXX XXXXXXXXX XXXXXXX BROTHERS INC By: SALOMON BROTHERS INC By: --------------------------- Name: Title: BANCAMERICA XXXXXXXXX XXXXXXXX By: --------------------------- Name: Title: BT ALEX. XXXXX INCORPORATED By:______________________ Managing Director 23 : --------------------------- Name: Title: SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number ---------- Principal Amount of Shares of Municipal Underwriter Preferred Notes Initial Purchasers to be Purchased ------------------ --------------- Salomon Brothers Inc............................................ $157,500,000 BancAmerica Xxxxxxxxx Xxxxxxxx.................................. 45,000,000 BT Alex. Xxxxx Incorporated..................................... 22,500,000 ------------ Total $225,000,000 SCHEDULE II ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 SUBSIDIARIES ------------ JURISDICTION OF OWNED BY AND INCORPORATION/ NAME PERCENTAGE OWNED ORGANIZATION ------ ---------------- --------------- EXHIBIT A FORM OF OPINION OF ROPES TO PURCHASE AGREEMENT [Form of Registration Rights Agreement] EXHIBIT B TO PURCHASE AGREEMENT Form of Opinion of Stroock Stroock & GRAY Xxxxx LLP
1. The Underwriter shall have received on Company has the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full requisite corporate power and authority to ownexecute, lease deliver and operate perform its properties obligations under the Indenture; the execution and to conduct its business as described in the Registration Statement delivery of, and the Prospectus and to issue and sell the Shares as contemplated performance by the Underwriting Agreement;
b. The Shares Company of its obligations under the Indenture have been duly and validly authorized and, when issued and delivered to by the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts lawCompany; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations Indenture has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued duly executed and no proceeding for any such purpose is pending or threatened delivered by the Commission;
e. The Registration Statement Company and, assuming due authorization, execution and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required delivery by the 1933 ActTrustee, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and legally binding obligation agreement of the Trust Company, enforceable against the Company in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements enforcement thereof may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and insolvency or other similar laws affecting the enforcement of general applicability relating to or affecting creditors' rights generally and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished subject to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws applicability of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best principles of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingequity.
Appears in 1 contract
Samples: Purchase Agreement (Ametek Inc/)
Applicable Law; Counterparts. This Agreement Agreement, and the Terms Agreement, shall be governed by and construed in accordance with the laws of the State of New YorkYork applicable to contracts made and to be performed within the State of New York without giving effect to the choice of laws or conflict of laws principles thereof. This Agreement Agreement, and the Terms Agreement, may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement and the Terms Agreement shall not become effective unless at least one counterpart hereof or thereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the Companies, the Trust, the Advisor The Money Store and the UnderwriterUnderwriters. Very truly yours, COLONIAL MUNICIPAL INCOME CLASSNOTES TRUST 1997-I By:____________________________________ COLONIAL MANAGEMENT ASSOCIATES: THE YORK BANK AND TRUST COMPANY, as Eligible Lender Trustee By: /s/ RICHARD H. BASS Name: Richarx X. Xxxx Title: Vice Pxxxxxxxx TRANS-WORLD INSURANCE COMPANY By: /s/ MICHAEL BENOFF Name: Michael Xxxxxx Title: Senior Xxxx Xxxxxxxxx CLASSNOTES, INC. By:____________________________________ : /s/ MICHAEL BENOFF Name: Michael Xxxxxx Title: Senior Xxxx Xxxxxxxxx THE MONEY STORE INC. By: /s/ MICHAEL BENOFF Name: Michael Xxxxxx Title: Executixx Xxxx Xxxxxxent Confirmed as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXXSMITH BARNEY INC. FIRST UNION CAPITAL MARKETS CORP. PRUDENTIAL SECURITXXX XXXXXXXXATED By:: SMITH BARNEY INC. By Name: Title: Exhibit A TRANS-WORLD INSURANCE COMPANY CLASSNOTES, INC. Auction Rate Asset Backed Notes TERMS AGREEMENT Dated ______, 199_ To: TRANS-WORLD INSURANCE COMPANY CLASSNOTES, INC. Re: Underwriting Agreement dated March ________________ Managing Director 23 SCHEDULE , 1997 Issuer: ClassNotes Trust 1997-I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- Series Designation: Series 1998-1 TERMS OF THE NOTES: Final Original Maturity Principal Interest Price to CLASS DATE AMOUNT RATE UNDERWRITERS --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY COLLATERAL: The Underwriter shall have received on Student Loans to be included in the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business Collateral are as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered Schedule A to the Underwriter against payment therefor in accordance with the terms of the Underwriting First Supplemental Sale and Servicing Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New YorkIllinois without reference to choice of law principles thereunder. This Agreement may be signed in various counterparts which together shall constitute one and the same instrument. If signed in counterparts, this This Agreement shall not become be effective unless when, but only when, at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End The Company, the Selling Shareholders and the Underwriters each hereby irrevocably waive any right they may have to a trial by jury in respect to any claim based upon or arising out of Text] 22 this Agreement or the transactions contemplated hereby. * * * * * Please confirm that the foregoing correctly sets forth the agreement among the TrustCompany, the Advisor Selling Shareholders and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATESCONTINENTAL WASTE INDUSTRIES, INC. By:____________________________________ Confirmed : /s/ Jeffrey E. Levine Name: Jeffrey E. Levine Title: Senior Vice President & General Counsel SELLING SHAREHOLDERS By: /s/ Jeffrey E. Levine Name: Jeffrey E. Levine Title: Senior Vice President & General Counsel As Attorney-in-Fact acting on behalf of each of the Selling Shareholders named in Schedule II hereto. CONFIRMED as of the date first above mentioned, on behalf of itself and the other several Underwriters named in Schedule I hereto. SALOXXX XXXXX XXXNXX RAYMOND JAMES & ASSOCIATES, XXX. Xy: /s/ Thomas W. Mullins Name: Txxxxx X. Xxxxxxx Title: Xxxx Xxxxxxxxx FIRST ANALYSIS SECURITIES CORPORATION By:______________________ Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx : /s/ Steven F. Bouck Name: Stexxx X. Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the Xitle: Exxxxxxxx Xxxx Xxesident NATWEST SECURITIES LIMITED By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.: /s/ Timothy Williams Name: Tixxxxx Xxxxxxxx Title: Dxxxxxxx
Appears in 1 contract
Samples: Underwriting Agreement (Continental Waste Industries Inc)
Applicable Law; Counterparts. This Agreement shall will be governed by and construed in accordance with the laws of the State of New Yorkwithout regard to principles of conflicts of law other than Section 5-1401 of the New York General Obligations Law which shall govern. This Agreement may be signed executed in various counterparts any number of counterparts, each of which shall for all purposes be deemed to be an original and all of which shall together constitute but one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the is in accordance with your understanding of our agreement, please sign and return to us a counterpart hereof, whereupon this letter and your acceptance shall represent a binding agreement among the TrustCompany, the Advisor Bank of America and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATES, BANC OF AMERICA COMMERCIAL MORTGAGE INC. By:____________________________________ Confirmed : /s/ Stephen L. Hogue -------------------------------------- Name: Stephen L. Hogue Title: Princxxxx BANK OF AMERICA, NATIONAL ASSOCIATION By: /s/ Peter J. Cookson -------------------------------------- Name: Peter J. Cookson Title: Managxxx Xxxxxxxx [SIGNATURE PAGE TO UNDERWRITING AGREEMENT] The foregoing Agreement is hereby confirmed and accepted as of the date first above mentionedwritten. SALOXXX XXXXX XXXNXX XXXBANC OF AMERICA SECURITIES LLC By: /s/ John S. Palmer -------------------------------------- Name: John S. Palmer Title: Vice Prxxxxxxx COMMERZBANK CAPITAL MARKETS CORP. By:______________________ : /s/ Robert Lord -------------------------------------- Name: Robert Lord Title: General Coxxxxx By: /s/ Brian Kwiatkowski -------------------------------------- Name: Brian Kwiatkowski Title: Authxxxxxx Xxxxxxxxx HYPO CAPITAL MARKETS, INC. By: /s/ Michael Krull -------------------------------------- Name: Michael Krull Title: Managing Director 23 Xxxxxxxx By: /s/ Thomas Savino -------------------------------------- Name: Thomas Savino Title: Managing Xxxxxxxx SUNTRUST CAPITAL MARKETS, INC. By: /s/ Robert Kennedy -------------------------------------- Name: Robert Kennedy Title: Managinx Xxxxxxxx [SIGNATURE PAGE TO UNDERWRITING AGREEMENT] CITIGROUP GLOBAL MARKETS INC. By: /s/ Angela J. Vleck -------------------------------------- Name: Angela J. Vleck Title: Managixx Xxxxxxxx CREDIT SUISSE SECURITIES (USA) LLC By: /s/ Reese Mason -------------------------------------- Name: Reese Mason Title: Managing Dxxxxxxx [SIGNATURE PAGE TO UNDERWRITING AGREEMENT] SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trustdated July 18, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that2007:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Banc of America Commercial Mortgage Inc., Series 2007-3)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the TrustCompany, the Advisor Partnership, the Trust and the UnderwriterUnderwriters. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATESEQUITY INNS, INC. By:____________________________________ : /s/ J. Mitchell Collins ---------------------------- J. Mitchell Collins Xxxxxxxxx Xxxe President, Chief Financial Officer, Secretary, and Treasurer EQUITY INNS TRUST By: /s/ J. Mitchell Collins ---------------------------- J. Mitchell Collins Xxxxxxxxx Xxce President, Chief Financial Officer, Secretary, and Treasurer EQUITY INNS PARTNERSHIP, L.P. By: EQUITY INNS TRUST General Partner By: /s/ J. Mitchell Collins ---------------------------- J. Mitchell Collins Xxxxxxxxx Xxxe President, Chief Financial Officer, Secretary, and Treasurer Confirmed as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXX.
A. G. Edwards & Sons, Inc. Calyon Securities (USA) Inc. As Rexxxxxxxxxxxxs of the Several Underwriters named on Schedule A-1 to this Agreement By: A.G. EDWARDS & SONS, INC. By:______________________ : /s/ Michael D. Bluhm ------------------------------------------ Xxxx: Michael D. Bluhm Title: Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date - Investment Bankixx Xxx xxemselves and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws as representative of the Commonwealth of Massachusetts with full power and authority several Underwriters named in Schedule A-1 to ownthis Agreement. SCHEDULE A-1 EQUITY INNS, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated INC. NUMBER OF UNDERWRITER FIRM SHARES ----------- ----------- A.G. Edwards & Sons, Inc. 2,430,000 Xxxxxx Xxxurities (USA) Inc. 270,000 ----------- Total 2,700,000 SCHEDULE A-2 DIRECT AND INDIRECT SUBSIDIARIES OF EQUITY INNS, INC. JURISDICTION OF INCORPORATION/ NAME ORGANIZATION OWNERSHIP PERCENTAGE ---- ------------ -------------------- 100% owned by the Underwriting Agreement;
b. The Shares have been duly authorized andEquity Inns, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Equity Inns Trust (the "Agreements and InstrumentsTrust"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound Maryland Inc. (the "Agreements and InstrumentsREIT") or any other Agreements and Instruments known to such counsel after due inquiryApproximately 97.3% owned by the Trust; approximately 2.7% owned by various limited Equity Inns Partnership, L.P. (iithe "Partnership") violates or will violate any statuteTennessee partners Equity Inns Services, law or regulation Inc. (assuming compliance with state securities and blue sky laws)"Services") Tennessee 100% owned by the REIT Equity Inns TRS Holdings, Inc. (iii"TRS Holdings") violates or will violate any judgmentTennessee 100% owned by the Partnership 1% GP interest held by the Trust; 99% LP interest held Equity Inns Partnership II, injunctionL.P. Tennessee by the Partnership 1% GP interest held by Services; 99% LP interest Equity Inns/West Virginia Partnership, order or decree that is applicable to L.P. Tennessee held by the Advisor or any Partnership EQI Financing Corporation Tennessee 100% owned by the Trust Approximately 1% GP interest held by EQI Financing Corporation; approximately 99% LP interest held by the EQI Financing Partnership I, L.P. Tennessee Partnership EQI Financing Corporation II Tennessee 100% owned by the Trust 1% GP interest held by EQI Financing Corporation II; 99% LP interest held by the EQI Financing Partnership II, L.P. Tennessee Partnership JURISDICTION OF INCORPORATION/ NAME ORGANIZATION OWNERSHIP PERCENTAGE ---- ------------ --------------------
1% GP interest held by EQI Financing Corporation II; 99% LP interest held by the EQI/WV Financing Partnership, L.P. Tennessee Partnership EQI Financing Corporation III Tennessee 100% owned by the Trust 1% GP interest held by EQI Financing Corporation III; 99% LP interest held by the EQI Financing Partnership III, L.P. Tennessee Partnership EQI Financing Corporation IV Tennessee 100% owned by the Trust 1% GP interest held by EQI Financing Corporation IV; 99% LP interest held by the EQI Financing Partnership IV, L.P. Tennessee Partnership EQI Financing Corporation V Tennessee 100% owned by the Trust 1% GP interest held by EQI Financing Corporation V; 99% LP interest held by the EQI Financing Partnership V, L.P. Tennessee Partnership EQI/WV Financing Corporation Tennessee 100% owned by the Trust 1% GP interest held by EQI/WV Financing Corporation; 99% LP interest held by the EQI/WV Financing Partnership II, L.P. Tennessee Partnership E. Inns Orlando, Inc. Tennessee 100% owned by Services 1% GP interest held by E. Inns Orlando, Inc.; 99% LP interest held by the E.I.P. Orlando, L.P. Tennessee Partnership ENN Leasing Company, Inc. Tennessee 100% owned by TRS Holdings JURISDICTION OF INCORPORATION/ NAME ORGANIZATION OWNERSHIP PERCENTAGE ---- ------------ -------------------- ENN Leasing Company I, L.L.C. Delaware 100% owned by TRS Holdings ENN Leasing Company II, L.L.C. Delaware 100% owned by TRS Holdings ENN Leasing Company III, L.L.C. Delaware 100% owned by TRS Holdings ENN Leasing Company IV, L.L.C. Delaware 100% owned by TRS Holdings ENN Leasing Company V, L.L.C. Delaware 100% owned by TRS Holdings ENN KS, Inc. Kansas 100% owned by TRS Holdings ENN TRS, Inc. Tennessee 100% owned by TRS Holdings 99% owned by TRS Holdings; 1% ENN TN, L.L.C. Delaware owned by ENN TRS, Inc. 99% owned by TRS Holdings; 1% ENN TN I, L.L.C. Delaware owned by ENN TRS, Inc. 99% owned by TRS Holdings; 1% ENN TN II, L.L.C. Delaware owned by ENN TRS, Inc. 99% owned by TRS Holdings; 1% ENN TN IV, L.L.C. Delaware owned by ENN TRS, Inc. 99% owned by TRS Holdings; 1% ENN TN V, L.L.C. Delaware owned by ENN TRS, Inc. EQI FL Corporation ("EQI FL") Tennessee 100% owned by the Trust 1% GP interest held by EQI FL; 99% LP interest held by EQI Tallahassee, L.P. Tennessee the Partnership 1% GP interest held by EQI FL; 99% LP interest held by EQI Athens, L.P. Tennessee the Partnership JURISDICTION OF INCORPORATION/ NAME ORGANIZATION OWNERSHIP PERCENTAGE ---- ------------ --------------------
1% GP interest held by EQI FL; 99% LP interest held by EQI Gainesville, L.P. Tennessee the Partnership ENN Gainesville, L.L.C. Delaware 100% owned by TRS Holdings ENN Tampa, L.L.C. Delaware 100% owned by TRS Holdings ENN Tallahassee, L.L.C. Delaware 100% owned by TRS Holdings ENN Asheville, L.L.C. Delaware 100% owned by TRS Holdings ENN Savannah, L.L.C. Delaware 100% owned by TRS Holdings ENN Athens, L.L.C. Delaware 100% owned by TRS Holdings ENN Mobile, L.L.C. Delaware 100% owned by TRS Holdings ENN Macon, L.L.C. Delaware 100% owned by TRS Holdings 1% GP interest held by EQI FL; 99% LP interest held by the McKibbon Hotel Group of its properties and that is known to such counselGainesville, or (iv) will result in Florida, L.P. Geoxxxx Partnership 1% GP interest held by EQI FL; 99% LP interest held by the creation or imposition McKibbon Hotel Group of any lienTallahassee, charge or encumbrance upon any property or assets Florida #3, L.P. Geoxxxx Partnership 1% GP interest held by EQI FL; 99% LP interest held by the McKibbon Hotel Group of Sabal Park, Florida, L.P. Geoxxxx Partnership 1% GP interest held by EQI FL; 99% LP interest held by the Advisor pursuant to McKibbon Hotel Group of Tallahassee, Florida, L.P. Geoxxxx Partnership 1% GP interest held by EQI FL; 99% LP interest held by the terms McKibbon Hotel Group of Asheville, North Carolina, L.P. Geoxxxx Partnership 1% GP interest held by EQI FL; 99% LP interest held by the Agreements and InstrumentsMcKibbon Hotel Group of Knoxville, Tennessee #2, L.P. Geoxxxx Partnership JURISDICTION OF INCORPORATION/ NAME ORGANIZATION OWNERSHIP PERCENTAGE ---- ------------ --------------------
1% GP interest held by EQI FL; and
g. The description 99% LP interest held by the McKibbon Hotel Group of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements thereinSavannah, in light of the circumstances under which they were madeGeorgia, not misleading.L.P. Geoxxxx Partnership
Appears in 1 contract
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York. This Agreement may be signed in various counterparts which that together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the Trust, the Advisor Issuers and the UnderwriterUnderwriters. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATES: PAA GP LLC its General Partner By: PLAINS AAP, INC. L.P. its Sole Member By:____________________________________ Confirmed : PLAINS ALL AMERICAN GP LLC its General Partner By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx Title: Vice President and Treasurer By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted by the Underwriters as of the date first above mentionedwritten. SALOXXX XXXXX XXXNXX XXX. X.X. Xxxxxx Securities LLC BNP Paribas Securities Corp. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxxxx Fargo Securities, LLC As Representatives of the several Underwriters By:______________________ : X.X. Xxxxxx Securities LLC By: BNP Paribas Securities Corp. By: /s/ Xxxxx Xxxxxx By: /s/ X. Xxxxxxxx Xxxxxxxx Name: Xxxxx Xxxxxx Name: X. Xxxxxxxx Xxxxxxxx Title: Executive Director Title: Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES By: Xxxxx Fargo Securities, LLC Incorporated By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxx Name: Xxxxx Xxxxxx Name: Xxxxxxx Xxxxxx Title: Managing Director Title: Director X.X. Xxxxxx Securities LLC $ 108,750,000 BNP Paribas Securities Corp. 108,750,000 Xxxxxxx Lynch, Pierce, Xxxxxx & GRAY The Underwriter shall have received on Xxxxx Incorporated 108,750,000 Xxxxx Fargo Securities, LLC 108,750,000 BBVA Securities Inc. 67,500,000 DNB Markets, Inc. 67,500,000 SMBC Nikko Securities America, Inc. 67,500,000 CIBC World Markets Corp. 18,750,000 Fifth Third Securities, Inc. 18,750,000 ING Financial Markets LLC 18,750,000 PNC Capital Markets LLC 18,750,000 Regions Securities LLC 18,750,000 U.S. Bancorp Investments, Inc. 18,750,000 Total $ 750,000,000 Issuers: Plains All American Pipeline, L.P. and PAA Finance Corp. Ratings (Xxxxx’x / S&P / Fitch):* [Ratings Intentionally Omitted] Security Type: Senior Unsecured Notes Legal Format: SEC Registered Pricing Date: November 15, 2016 Settlement Date (T+5): November 22, 2016 Maturity Date: December 15, 2026 Principal Amount: $750,000,000 Benchmark Treasury: UST 2.00% due November 15, 2026 Benchmark Treasury Yield: 2.235% Spread to Benchmark Treasury: +230 bps Yield to Maturity: 4.535% Coupon: 4.500% Public Offering Price: 99.716% Net Proceeds (after deducting the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date underwriting discount and addressed estimated offering expenses) to the UnderwriterPartnership: $741.3 million Make-Whole Call: T+ 35 bps Call at Par: On or after September 15, in form 2026 Interest Payment Dates: June 15 and substance satisfactory December 15, beginning on June 15, 2017 CUSIP / ISIN: 72650R BL5 / US72650RBL50 Joint Book-Running Managers: X.X. Xxxxxx Securities LLC BNP Paribas Securities Corp. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxxxx Fargo Securities, LLC BBVA Securities, LLC DNB Markets, Inc. SMBC Nikko Securities America, Inc. Co-Managers: CIBC World Markets Corp. Fifth Third Securities, Inc. ING Financial Markets LLC PNC Capital Markets LLC Regions Securities LLC U.S. Bancorp Investments, Inc. * Note: A securities rating is not a recommendation to the Underwriter buy, sell or hold securities and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws may be revised or withdrawn at any time. Delivery of the Commonwealth of Massachusetts with full power and authority notes is expected to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter be made against payment therefor on or about November 22, 2016, which is the 5th business day following the date of pricing of the notes (such settlement being referred to as “T+5”). Under Rule 15c6-1 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), trades in accordance the secondary market generally are required to settle in three business days unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the notes on the date of pricing of the notes or the next succeeding business day will be required, by virtue of the fact that the notes initially will settle in T+5, to specify an alternate settlement cycle at the time of any such trade to prevent failed settlement and should consult their own advisers. The issuers have filed a registration statement (including a base prospectus) and a prospectus supplement with the terms U.S. Securities and Exchange Commission (the “SEC”) for the offering to which this communication relates. Before you invest, you should read the prospectus supplement for this offering, the issuers’ prospectus in that registration statement and any other documents the issuers have filed with the SEC for more complete information about the issuers and this offering. You may get these documents for free by visiting XXXXX on the SEC web site at xxx.xxx.xxx. Alternatively, the issuers, any underwriter or any dealer participating in the offering will arrange to send you the prospectus supplement and prospectus if you request it by calling X.X. Xxxxxx Securities LLC collect at 0-000-000-0000, BNP Paribas Securities Corp. toll-free at 0-000-000-0000, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated toll-free at 1-800-294-1322 or Xxxxx Fargo Securities, LLC toll-free at 0-000-000-0000. Plains Marketing, L.P. Plains Pipeline, L.P. Pacific Pipeline System LLC Plains Products Terminals LLC Plains Midstream Canada ULC Plains South Texas Gathering LLC Plains West Coast Terminals LLC Rocky Mountain Pipeline System LLC Pine Prairie Energy Center, LLC SG Resources Mississippi LLC Plains LPG Services LP Plains Marketing, L.P. Plains Pipeline, L.P. Pacific Pipeline System LLC Plains Products Terminals LLC Plains South Texas Gathering LLC Plains West Coast Terminals LLC Rocky Mountain Pipeline System LLC Pine Prairie Energy Center, LLC SG Resources Mississippi LLC Plains LPG Services XX Plains All American Pipeline, L.P. Texas PAA Finance Corp. Texas PAA GP LLC Texas Plains AAP, L.P. Texas Plains All American GP LLC California, Illinois, Louisiana, Oklahoma, Texas Plains GP Holdings, L.P. Texas PAA GP Holdings LLC Texas Plains Marketing, L.P. California, Illinois, Louisiana, Oklahoma Plains Pipeline, L.P. California, Illinois, Louisiana, Oklahoma Plains Products Terminals LLC California Plains Midstream Canada ULC Alberta, Manitoba, New Brunswick, Nova Scotia, Ontario, Quebec, Saskatchewan Plains South Texas Gathering LLC Oklahoma Pacific Pipeline System LLC California Plains West Coast Terminals LLC California Rocky Mountain Pipeline System LLC Utah Pine Prairie Energy Center, LLC Louisiana SG Resources Mississippi LLC Alabama, Mississippi Plains LPG Services LP California, Illinois, Oklahoma The undersigned, in his capacity as the Chief Financial Officer of Plains All American GP LLC, a Delaware limited liability company, which is the general partner of Plains AAP, L.P., a Delaware limited liability partnership, which is the sole member of PAA GP LLC, a Delaware limited liability company, which is the general partner of Plains All American Pipeline, L.P., a Delaware limited partnership (the “Partnership”), does hereby certify that he is familiar with the accounting, operations and record systems of the Underwriting AgreementPartnership and that, will be validly issuedto his knowledge after reasonable investigation, fully paid and nonassessable and free of there has not been any preemptive or similar rights and will conform to the description thereof material adverse change in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements financial position, results of Massachusetts law; and the relative rightsoperations, interests, powers and preferences cash flows or working capital of the SharesPartnership since September 30, and the obligation 2016. In addition, as of the Trust date of this certificate, the total debt of the Partnership is approximately $11.9 billion. Capitalized terms used but not defined herein have the meanings assigned to redeem such Shares upon the terms and conditions set forth them in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest Underwriting Agreement dated as of the Trust are as set forth in date hereof by and among the Prospectus;
d. The Registration Statement is effective under the 1933 Act Partnership, PAA Finance Corp. and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules .X. Xxxxxx Securities LLC, BNP Paribas Securities Corp., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Regulations has been made within the time periods required by Rule 497(b) or (h)Xxxxx Fargo Securities, LLC, as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) representatives of the 1940 Act relating several Underwriters. This certificate is to assist the Trust has been issued Underwriters in conducting and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions documenting their investigation of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions affairs of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust Partnership in connection with the preparation offering of the Notes covered by the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Pricing Disclosure Package and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Plains All American Pipeline Lp)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among between the Trust, the Advisor Company and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATES, INC. By:____________________________________ CAPSTONE CAPITAL CORPORATION By --------------------------------- Name: Title: Confirmed as of the date first above mentionedmentioned on behalf of themselves and the other several Underwriters named in Exhibit A to Schedule I hereto. SALOXXX XXXXX XXXNXX SMITX XXXXXX XXX. By:______________________ Managing Director 23 PAINEWEBBER INCORPORATED J.C. XXXXXXXX & XO. COWEX & XOMPANY By SMITX XXXXXX XXX. By --------------------------------------- Name: Title: SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST DESCRIPTION OF SECURITIES; TERMS OF OFFERING
1. Registration Statement: File No. 33-97926
2. Underwriters: Smitx Xxxxxx Xxx. PaineWebber Incorporated J.C. Xxxxxxxx & Xo. Cowex & Xompany
3. Title of Securities: Common Stock, par value $.001 per share
4. Aggregate Number of Shares Firm Securities: Common Stock: 2,500,000
5. Aggregate Number of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY Option Securities: Common Stock: 375,000
6. Price to Public: Common Stock: $20.875 per share
7. Purchase Price by Underwriters: Common Stock: $19.78 per share
8. Specified Funds for Payment of Purchase Price or Wire: Wire of $49,450,000
9. Lock-up Requirements: The Underwriter shall have received on Company and each officer and director of the Closing Date an opinion Company has agreed not to offer, sell, contract to sell or otherwise dispose of Ropes & Grayany shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, counsel for or grant any option or warrants to purchase Common Stock, except, in the Trustcase of the Company, dated the Closing Date and addressed pursuant to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing grant or exercise of options under the laws Stock Incentive Plan and shares of Common Stock issuable upon conversion of the Commonwealth 10-1/2 per cent Convertible Subordinated Debentures due 2002, for a period of Massachusetts with full power and authority 180 days from the date of this Prospectus, without the prior written consent of Smitx Xxxxxx Xxx., subject to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions certain exceptions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;Underwriting Agreement.
c. 10. Information Furnished by the Underwriters: The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective last paragraph on the cover page, the stabilization legend on the inside cover page, and the statements in the first and third paragraphs under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made caption "Underwriting" in the Prepricing Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingSupplement.
Appears in 1 contract
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New YorkYork applicable to agreements made and to be performed entirely in said State. This Agreement may be signed executed in various counterparts any number of counterparts, each of which shall for all purposes be deemed to be an original and all of which shall together constitute but one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the is in accordance with your understanding of our agreement, please sign and return to us a counterpart hereof, whereupon this letter and your acceptance shall represent a binding agreement among the TrustCompany, the Advisor Prudential and the UnderwriterUnderwriters. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION By:____________________________________ COLONIAL MANAGEMENT ASSOCIATES: /s/ CLAY LEBHAR --------------------------------------- Name: Clay Lebhar Title: Vice President PRUDENTIAL MORTGAGE CAPITAL COMPANY, INCLLC By: /s/ DUANE H. TUCKER, JR. By:____________________________________ Confirmed --------------------------------------- Name: Duane H. Tucker, Jr. Title: Managing Dixxxxxx Xxx xxxxxxxng Agreement is hereby confirmed and accepted as of the date first above mentionedwritten. SALOXXX XXXXX XXXNXX MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED By: /s/ JOHN E. XXXXXXK ------------------------------------------- Xxxx: Xxxx X. Gluszak Title: Director, Authorized Signatory SALOMON SXXXX XXXXXX XXX. By:______________________ : /s/ PAUL T. VANDERSLICE -------------------------------------------- Xxxx: Xxxx X. Vanderslice Title: Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY UNDERWRITING AGREEMENT DATED MARCH 31, 2001: As used in this Schedule I, the term "Registration Statement" refers to registration statement No. 333-42858 filed by the Company on Form S-3 and previously declared effective. The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed term "Basic Prospectus" refers to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described prospectus in the Registration Statement or such later form as most recently filed by the Company pursuant to Rule 424(b) under the Securities Act of 1933, as amended. The term "Prospectus but are not described as required;
i. To Supplement" refers to the best supplement to the Basic Prospectus relating to the mortgage pass-through certificates being sold pursuant to the Underwriting Agreement (the "Underwritten Certificates"). MORTGAGE POOL: Approximately 120 commercial and multifamily mortgage loans, having an aggregate approximate principal balance, after giving effect to payments of principal due on or before May 1, 2001 (the "Cut-Off Date"), of $914,474,000. The Mortgage Loan Seller shall make such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described representations and warranties in the Registration Statement or the Prospectus or to be filed as an exhibit Mortgage Loan Purchase Agreement with respect to the Registration Statement that Mortgage Pool and the Mortgaged Properties as are not described or filed as customary for similar transactions and may be required by the 1933 Act, Rating Agencies and the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result investors in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust Certificates not purchased pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingthis Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Prudential Securities Sec Fin Corp Mor Pas THR Cer 2001-C1)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the TrustFund, the Advisor Adviser, the Sub-Adviser and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL NEUBERGER BERMAN REAL ESTATE INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATES, FUND INC. By:____________________________________ : ------------------------------------ Title: NEUBERGER BERMAN MANAGEMENT INC. By: ------------------------------------ Title: NEUBERGER BERMAN, LLC By: ------------------------------------ Title: Confirmed as of the date first above mentionedwritten on behalf of themselves and the other several Under- writers named in Schedule I hereto. SALOXXX XXXXX XXXNXX XXXAS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS A.G. EDWARDS & SONS, INC. By:______________________ Managing Director 23 : --------------------------------- Title: SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Underwriter Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx ---------------- A.G. Edwards & Sons, Inc. Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 ===== EXHIBIT A FORM OF OPINION OF ROPES KIRKPATRICK & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & GrayLOCKHART OPINION
0. Xxx Fuxx xx x corporation duly incorporated, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing and in good standing under the laws of the Commonwealth State of Massachusetts with full Maryland and is qualified to do business as a foreign corporation in the State of New York, which such counsel has been advised by an officer of the Fund is the only state in which the Fund maintains an office for the conduct of its business.
2. The Fund has the corporate power and authority to own, lease and operate to: (i) own its properties and to conduct its business as described in the Registration Statement and the Prospectus; and (ii) execute, deliver, and perform its obligations under the Underwriting Agreement and the Fund Agreements.
3. To such counsel's knowledge, the Fund does not have any subsidiaries.
4. The common shares of the Fund, par value $.0001 per share (the "Common Shares") and the Shares, conform in all material respects as to all statements as to legal matters relating thereto contained in the Prospectus. No person is entitled to any preemptive or other similar rights with respect to the Common Shares or the Shares.
5. The number of authorized Common Shares and Shares is as set forth in the Prospectus under the caption "Description of Shares." All Common Shares that to such counsel's knowledge have been issued and are outstanding prior to issue the issuance of the Shares: (i) have been duly authorized, validly issued and sell the Shares as contemplated are fully paid and non-assessable; and (ii) have been offered and sold by the Underwriting Agreement;Fund in compliance with applicable law.
b. 6. The Shares have been duly authorized for issuance and sale to the Underwriters pursuant to the Underwriting Agreement and, when issued and delivered by the Fund pursuant to the Underwriter Underwriting Agreement against payment therefor of the consideration set forth in accordance with the terms of the Underwriting Agreement, will be validly issued, issued and fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the Bynon-Laws, are legal, valid, binding and enforceable under Massachusetts law;assessable.
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. 7. The Registration Statement is Statement, including any Rule 462(b) Registration Statement, has become effective under the 1933 Act and the 1940 Act; , any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations 497(c) or Rule 497(h) has been made in the manner and within the time periods period required by Rule 497(b) or (h)497, as the case may be; and to the best knowledge of such counsel's knowledge, no stop order suspending its the effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust Registration Statement or of any Rule 462(b) Registration Statement has been issued and no proceeding for any such purpose is pending issued, or proceedings therefor threatened by the Commission;, under the 1933 Act.
e. 8. The Fund is duly registered with the Commission under the 1940 Act as a closed-end diversified management investment company.
9. Other than with respect to financial statements and related notes and schedules and any other financial, accounting and statistical information that is included or incorporated by reference in, or omitted from, the following documents, as to which such counsel need express no opinion: (i) the Registration Statement, including any Rule 462(b) Registration Statement and any Rule 430A Information, the Prospectus comply and any amendment or supplement thereto through the date hereof complied as to form in all material respects with the provisions requirements of the 1933 Act, the 1940 Act and the Rules and Regulations thereunder; and (except that no opinion need be expressed ii) the Fund's notification of registration on Form N-8A complied as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions form in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply respects with the requirements of the 1940 Act and the 1940 Act Rules and RegulationsRegulations thereunder.
10. Insofar as the statements in the Prospectus under the captions "Description of Shares" "Tax Matters - General; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation Taxation of the Registration Statement, Fund" and based on "Tax Matters - Taxation of the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified Fund's Shareholders" and is not passing upon and assumes no responsibility for in the Registration Statement or the Prospectus under Item 29 (other than as set forth in (f)Indemnification) constitute summaries of legal matters, (g) and (m) above) in the course of their review provisions of the Registration Statement and Prospectus and discussion Fund's articles of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountantsincorporation, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, articles supplementary or other financial data contained by-laws or legal proceedings or legal conclusions referred to therein, as those statements fairly present the information called for with respect to those legal matters, documents, proceedings or conclusions.
11. To such counsel's knowledge, there is no action, suit, proceeding, inquiry or investigation by or before any court or governmental agency that is pending against the Fund or to which such counsel need express no belief), as any of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading properties are subject or that is threatened against the Prospectus (except for Fund, which may reasonably be expected to result in a Material Adverse Effect or to materially and adversely affect the financial statements, including the notes and schedules thereto, properties or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light assets of the circumstances under which they were madeFund, not misleading. Such counsel may also state that they do not express any opinion concerning any law other than the law consummation by the Fund of the Commonwealth transactions contemplated in the Underwriting Agreement or the performance by the Fund of Massachusetts and the federal law its obligations thereunder.
12. The terms of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and each of the Management Agreement have been duly authorizedFund Agreements do not violate in any material respect any applicable provision of 1940 Act, executed the Rules and delivered by the Advisor and each complies with all applicable provisions of Regulations thereunder, the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations.
13. Neither the execution and delivery by the Fund of, and the performance by the Fund of its obligations under, the 1940 Act Underwriting Agreement or the 1940 Act Rules Fund Agreements, nor the issuance and Regulations from acting sale of the Shares to the Underwriters and the use by the Fund of the proceeds thereof as provided by the Underwriting Agreement and as described in the Prospectus under the Management Agreement caption "Use of Proceeds": (i) violate the Fund's articles of incorporation, articles supplementary or bylaws; (ii) violate, breach or constitute a default or event of default under the terms of any agreement or instrument that is filed as an exhibit to the Registration Statement and to which the Fund is a party or by which its property may be bound, except for violations, breaches or defaults that would not have a Material Adverse Effect; (iii) violate the Trust as contemplated by laws of the Prospectus;
d. To United States, the best States of Maryland and New York and The Commonwealth of Massachusetts that are, in such counsel's knowledge after reasonable inquiryexperience, there are no legal applicable to the transactions of the types covered by the Underwriting Agreement and the Fund Agreements (the "Covered Laws"); (iv) violates the terms of any order of any court, governmental instrumentality, securities exchange or governmental proceedings pending association or threatened against arbitrator specifically naming the Adviser, Fund and known to such counsel or (v) to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiryknowledge, require the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser Fund to obtain any consentconsent or approval by, approval, authorization or other order of or registration or make any filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, or any regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate under any statute, law rule, or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms State of Maryland or of the Agreements United States, other than consents, approvals and Instruments; and
g. The description of the Adviser filings previously obtained or made and in the Registration Statement full force and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingeffect.
Appears in 1 contract
Samples: Underwriting Agreement (Neuberger Berman Real Estate Income Fund Inc)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the Trust, the Advisor and the Underwriter. Very truly yours, COLONIAL HIGH INCOME MUNICIPAL INCOME TRUST By:____________________________________ : ------------------------------------- COLONIAL MANAGEMENT ASSOCIATES, INC. By:____________________________________ : ------------------------------------- Confirmed as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXX. By:______________________ : -------------------------------- Managing Director 23 SCHEDULE I COLONIAL HIGH INCOME MUNICIPAL INCOME TRUST Number of Shares of Series W Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 . 2,400 ------- Total 2,400 25 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement Statement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, with the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. The Underwriting Agreement and the Trust Agreements have been duly authorized, executed and delivered by the Trust and each complies with all applicable provisions of the 1940 Act; assuming due authorization, execution and delivery by the other parties thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and
n. The portions of the proxy statement and all related materials distributed to holders of Common Shares of the Trust in connection with the shareholder meeting held on May 20, 1999, as adjourned to ________ __, 1999 (the "Shareholder Meeting"), and in connection with amending the Declaration to permit the issuance of preferred shares (the "Preferred Share Proxy Materials") did not, as of its date or the date of the Shareholder Meeting, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Preferred Share Proxy Materials complied as to form, as of its date and as of the date of the Shareholder Meeting, in all material respects with the provisions of the 1934 Act, the 1940 Act and the Rules and Regulations. Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser Advisor is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser Advisor is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the AdviserAdvisor, or to which the Adviser Advisor or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser Advisor is not in violation of its corporate charter or by-laws, nor is the Adviser Advisor in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser Advisor of the transactions contemplated hereby or thereby (A) requires the Adviser Advisor to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.or
Appears in 1 contract
Samples: Underwriting Agreement (Colonial High Income Municipal Trust)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the Trust, the Advisor Fund and the UnderwriterAdvisers and the several Underwriters. Very truly yours, COLONIAL MUNICIPAL NUVEEN PREFERRED AND CONVERTIBLE INCOME TRUST FUND By:: ___________________________ Name: Title: NUVEEN INSTITUTIONAL ADVISORY CORP. By: _____________________________ Name: Title: SPECTRUM ASSET MANAGEMENT, INC. By: ___________________________ Name: Title: FROLEY, REVY INVESTMENT CO., INC. By: ___________________________ Name: Title: Confirmed as of the date first above written on behalf of themselves and the other several Underwriters named in Schedule I hereto. By: SALOMON SMITH BARNEY INC. NUVEEN INVESTMENTX, XXX A.G. EDWARDS & SONS, INC. PRUDENTIAL SECURIXXXX XXXXXXXRATED WACHOVIA SECURITIES, INC. ADVEST, INC. ROBERT W. BAIRD & CO. INCORPORATED H&R BLOCX XXXXXXXXX XXXISORS, INC. FAHNESTOCK & Co. Inc. FERRIS, BAKER WATTS, XXXXXXXXXXED JANNEY MOXXXXXXRY XXXXT XXX LEGG MASON WOOD XXXXXR, XXXXXXXXXXXX MCDONAXX XNXXXXXXXXX IXX., X KEYCORP COMPANY QUICK & Reilly, Inc. A FleetBoston Financial Company XXX DAIN RAUSCHER INC. RYAN BECK & CO., INC. STIFEL, NICOLAUS & COXXXXX, XXCORPORATED TD XXXXXXXXXX XXXXSTOR SERVICES, INC. WEDBUSH MORGAN SECURITIES INC. WELLS FARGO SECURITIXX, XXC AS REPRESENTATIVES OF THE SEVERAL UNDERWRXXXXX By: SALOMON SMITH BARNEY INC. By: ___________________________________ COLONIAL MANAGEMENT ASSOCIATES, INC. By:____________________________________ Confirmed as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXX. By:______________________ Managing Director 23 Name: Title: 39 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.I
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Preferred Convertible Income Fund)
Applicable Law; Counterparts. This Agreement shall be governed by and ---------------------------- construed in accordance with the laws of the State of New YorkFlorida without reference to choice of law principles thereunder. This Agreement may be signed in various counterparts which together shall constitute one and the same instrument. If signed in counterparts, this This Agreement shall not become be effective unless when, but only when, at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End The Company, the Selling Stockholders and the Underwriters each hereby irrevocably waive any right they may have to a trial by jury in respect to any claim based upon or arising out of Text] 22 this Agreement or the transactions contemplated hereby. Please confirm that the foregoing correctly sets forth the agreement among the TrustCompany, the Advisor Selling Stockholders and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST Dover Downs Entertainment, Inc. By:_______________________________________________ COLONIAL MANAGEMENT President and Chief Executive Officer Solely with respect to Sections 6.2 and 8 of this Agreement, the Selling Stockholders Named in Schedule II Hereto, Acting Severally By:_______________________________________________ Attorney-in-Fact CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXXX XXXXX & ASSOCIATES, INC. By:___________________________________ Authorized Representative SCHEDULE I Number of Name Firm Shares --------------------------------------------------- --------------- Xxxxxxx Xxxxx & Associates......................... X.X. Xxxxxxxx & Co. ............................... TOTAL ............................................. 2,650,000 -32- SCHEDULE II Schedule of Selling Stockholders Number of Firm Shares Stockholder to be Sold ----------- ----------- Total EXHIBIT A February __ Confirmed as _, 2000 DOVER DOWNS ENTERTAINMENT, INC. 0000 Xxxxxxx Xxxx Xxxxxxxxxx, Xxxxxxxx 000000 XXXXXXX XXXXX & ASSOCIATES, INC. X.X. XXXXXXXX & CO. As Representatives of the date first above mentionedSeveral Underwriters c/o Raymond Xxxxx & Associates, Inc. 000 Xxxxxxxx Xxxxxxx Xx. SALOXXX XXXXX XXXNXX XXXXxxxxxxxxx, XX 00000 RE: DOVER DOWNS ENTERTAINMENT, INC. By:______________________ Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions THE "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and InstrumentsCOMPANY") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.- RESTRICTION ON STOCK ---------------------------------------------------------------------- SALES ----- Dear Sirs:
Appears in 1 contract
Samples: Underwriting Agreement (Dover Downs Entertainment Inc)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the TrustFund, the Advisor Adviser, the Sub-Adviser and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL NEUBERGER BERMAN REAL ESTATE INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATES, FUND INC. By:____________________________________ : /s/ Peter E. Sundman ------------------------------------ Title: Director NEUBERGER BERMAN MANAGEMENT INC. By: /s/ Peter E. Sundman ------------------------------------ Title: President NEUBERGER BERMAN, LLC By: /s/ Peter E. Sundman ------------------------------------ Title: Executive Vice President Confirmed as of the date first above mentionedwritten on behalf of themselves and the other several Under- writers named in Schedule I hereto. SALOXXX XXXXX XXXNXX XXXAS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS A.G. EDWARDS & SONS, INC. By:______________________ Managing Director 23 Bx: /x/ Xxxxxel D. Bluhm --------------------------------- Title: Vice President SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Underwriter Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 ---------------- A.G. Edwards & Sons, Inc. 1,260 Total 1,260 ===== ===== EXHIBIT A FORM OF OPINION OF ROPES KIRKPATRICK & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & GrayLOCKHART OPINION
0. Xxe Fxxx xx x corporation duly incorporated, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing and in good standing under the laws of the Commonwealth State of Massachusetts with full Maryland and is qualified to do business as a foreign corporation in the State of New York, which such counsel has been advised by an officer of the Fund is the only state in which the Fund maintains an office for the conduct of its business.
2. The Fund has the corporate power and authority to own, lease and operate to: (i) own its properties and to conduct its business as described in the Registration Statement and the Prospectus; and (ii) execute, deliver, and perform its obligations under the Underwriting Agreement and the Fund Agreements.
3. To such counsel's knowledge, the Fund does not have any subsidiaries.
4. The common shares of the Fund, par value $.0001 per share (the "Common Shares") and the Shares, conform in all material respects as to all statements as to legal matters relating thereto contained in the Prospectus. No person is entitled to any preemptive or other similar rights with respect to the Common Shares or the Shares.
5. The number of authorized Common Shares and Shares is as set forth in the Prospectus under the caption "Description of Shares." All Common Shares that to such counsel's knowledge have been issued and are outstanding prior to issue the issuance of the Shares: (i) have been duly authorized, validly issued and sell the Shares as contemplated are fully paid and non-assessable; and (ii) have been offered and sold by the Underwriting Agreement;Fund in compliance with applicable law.
b. 6. The Shares have been duly authorized for issuance and sale to the Underwriters pursuant to the Underwriting Agreement and, when issued and delivered by the Fund pursuant to the Underwriter Underwriting Agreement against payment therefor of the consideration set forth in accordance with the terms of the Underwriting Agreement, will be validly issued, issued and fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the Bynon-Laws, are legal, valid, binding and enforceable under Massachusetts law;assessable.
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. 7. The Registration Statement is Statement, including any Rule 462(b) Registration Statement, has become effective under the 1933 Act and the 1940 Act; , any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations 497(c) or Rule 497(h) has been made in the manner and within the time periods period required by Rule 497(b) or (h)497, as the case may be; and to the best knowledge of such counsel's knowledge, no stop order suspending its the effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust Registration Statement or of any Rule 462(b) Registration Statement has been issued and no proceeding for any such purpose is pending issued, or proceedings therefor threatened by the Commission;, under the 1933 Act.
e. 8. The Fund is duly registered with the Commission under the 1940 Act as a closed-end diversified management investment company.
9. Other than with respect to financial statements and related notes and schedules and any other financial, accounting and statistical information that is included or incorporated by reference in, or omitted from, the following documents, as to which such counsel need express no opinion; (i) the Registration Statement, including any Rule 462(b) Registration Statement and any Rule 430A Information, the Prospectus comply and any amendment or supplement thereto through the date hereof complied as to form in all material respects with the provisions requirements of the 1933 Act, the 1940 Act and the Rules and Regulations thereunder; and (except that no opinion need be expressed ii) the Fund's notification of registration on Form N-8A complied as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions form in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply respects with the requirements of the 1940 Act and the 1940 Act Rules and RegulationsRegulations thereunder.
10. Insofar as the statements in the Prospectus under the captions "Description of Shares" "Tax Matters - General; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation Taxation of the Registration Statement, Fund" and based on "Tax Matters - Taxation of the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified Fund's Shareholders" and is not passing upon and assumes no responsibility for in the Registration Statement or the Prospectus under Item 29 (other than as set forth in (f)Indemnification) constitute summaries of legal matters, (g) and (m) above) in the course of their review provisions of the Registration Statement and Prospectus and discussion Fund's articles of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountantsincorporation, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, articles supplementary or other financial data contained by-laws or legal proceedings or legal conclusions referred to therein, as those statements fairly present the information called for with respect to those legal matters, documents, proceedings or conclusions.
11. To such counsel's knowledge, there is no action, suit, proceeding, inquiry or investigation by or before any court or governmental agency that is pending against the Fund or to which such counsel need express no belief), as any of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading properties are subject or that is threatened against the Prospectus (except for Fund, which may reasonably be expected to result in a Material Adverse Effect or to materially and adversely affect the financial statements, including the notes and schedules thereto, properties or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light assets of the circumstances under which they were madeFund, not misleading. Such counsel may also state that they do not express any opinion concerning any law other than the law consummation by the Fund of the Commonwealth transactions contemplated in the Underwriting Agreement or the performance by the Fund of Massachusetts and the federal law its obligations thereunder.
12. The terms of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and each of the Management Agreement have been duly authorizedFund Agreements do not violate in any material respect any applicable provision of 1940 Act, executed the Rules and delivered by the Advisor and each complies with all applicable provisions of Regulations thereunder, the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations.
13. Neither the execution and delivery by the Fund of, and the performance by the Fund of its obligations under, the 1940 Act Underwriting Agreement or the 1940 Act Rules Fund Agreements, nor the issuance and Regulations from acting sale of the Shares to the Underwriters and the use by the Fund of the proceeds thereof as provided by the Underwriting Agreement and as described in the Prospectus under the Management Agreement caption "Use of Proceeds": (i) violate the Fund's articles of incorporation, articles supplementary or bylaws; (ii) violate, breach or constitute a default or event of default under the terms of any agreement or instrument that is filed as an exhibit to the Registration Statement and to which the Fund is a party or by which its property may be bound, except for violations, breaches or defaults that would not have a Material Adverse Effect; (iii) violate the Trust as contemplated by laws of the Prospectus;
d. To United States, the best States of Maryland and New York and The Commonwealth of Massachusetts that are, in such counsel's knowledge after reasonable inquiryexperience, there are no legal applicable to the transactions of the types covered by the Underwriting Agreement and the Fund Agreements (the "Covered Laws"); (iv) violates the terms of any order of any court, governmental instrumentality, securities exchange or governmental proceedings pending association or threatened against arbitrator specifically naming the Adviser, Fund and known to such counsel or (v) to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiryknowledge, require the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser Fund to obtain any consentconsent or approval by, approval, authorization or other order of or registration or make any filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, or any regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate under any statute, law rule, or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms State of Maryland or of the Agreements United States, other than consents, approvals and Instruments; and
g. The description of the Adviser filings previously obtained or made and in the Registration Statement full force and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingeffect.
Appears in 1 contract
Samples: Underwriting Agreement (Neuberger Berman Real Estate Income Fund Inc)
Applicable Law; Counterparts. This Agreement shall will be governed by and construed in accordance with the laws of the State of New YorkYork applicable to agreements made and to be performed in said State. This Agreement may be signed executed in various counterparts any number of counterparts, each of which shall for all purposes be deemed to be an original and all of which shall together constitute but one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the is in accordance with your understanding of our agreement, please sign and return to us a counterpart hereof, whereupon this letter and your acceptance shall represent a binding agreement among the TrustCompany [, the Advisor Issuer] and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL INCOME CRIIMI MAE CMBS CORP. By: Name: Title: [CRIIMI MAE COMMERCIAL MORTGAGE TRUST [I] By:: ----------------------------------------- Not in its individual capacity but solely as Owner Trustee By: Name: Title:] Accepted at New York, New York as of the date first written above. [NAME OF LEAD UNDERWRITER] By: Name: Title: SCHEDULE I [Bond] Principal or Notional Amount of relevant Underwriter Class of Offered (and address) Class Securities to be Purchased ------------- ----- -------------------------- SCHEDULE II Registration Statement No. Basic Prospectus dated ___________, 19__ Prospectus Supplement dated ___________, 19__ Title of Securities: [Mortgage Pass-Through Certificates] [Collateralized Mortgage Obligations] Series ____. Cut-off Date: __________, 19__ Closing: ___________ COLONIAL MANAGEMENT ASSOCIATES, INC. By:[A.M. P.M.] __________________________________, 19__ Confirmed as at the offices of the date first above mentioned. SALOXXX XXXXX XXXNXX XXX. By:______________________ Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number Sidley & Austin 000 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Manner of Shares payment of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion Security Purchase Price: Office for delivery of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and Bybook entry Offered Securities: Office for payment for Offered Securities or wire transfer information: Office for checking non-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect thatbook entry Offered Securities:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among between the Trust, the Advisor Company and the Underwriterseveral U.S. Underwriters. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST ADELPHIA COMMUNICATIONS CORPORATION By:____________________________________ COLONIAL MANAGEMENT ASSOCIATES, INC. By:____________________________________ : /s/ James R. Brown Name: Xxxxx X. Xxxxn Title: Xxxx Xxxxxxxxt Confirmed as of the date first above mentionedmentioned on behalf of themselves and the other several U.S. Underwriters named in Schedule I hereto. SALOXXX XXXXX XXXNXX XXXSMITH BARNEY INC. GOLDMAN, SACHS & CO. NATIONSBANC MONTGOMERY SECUXXXXXX XXX XREDIT XXXXXX FIXXX XOSTON CORPORATION LXXXXX XXXXHERS INC. TD SECURITIES (USA) INC. As Representatives xx xxx Several U.S. Underwriters By SMITH BARNEY INC. By:______________________ Managing Director 23 : /s/ Michael E. Anderson Name: Xxxxxxx X. Anderson Title: SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST ADELPHIA COMMUNICATIONS CORPORATION U.S. Underwriter Number of Firm Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx ---------------- --------------------- Smith Barney Inc. 766,000 Xxxxxxx, Sachs & Co. 765,000 XxtionsBanc Montgomery Securities LLC 765,000 Credit Xxxxxx Xxxst Boston Corporation 328,000 Lehman Brothers Inc. 328,000 XD Securities (USA) Inc. 328,000 TOTAL 3,280,000 SCHEDULE II LOCK-UP LETTERS
1. John J. Rigas
2. Michael J. Rigas
3. Timothy J. Rigas
4. Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & GrayX. Xigas
5. Xxxxx X. Xxxas
6. Xxxxxxxx Xxxxxnicationx, counsel for the TrustX.X.X.
0. Highlxxx Xxxxxxxxx Communications, dated the Closing Date and addressed to the UnderwriterL.L.C.
8. Syracuse Hilton Head Holdings, in form and substance satisfactory to the Underwriter and to the effect that:L.P.
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own9. Doris Holdings, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized andL.P. 10. Eleni Acquisition, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.Inc.
Appears in 1 contract
Samples: u.s. Underwriting Agreement (Adelphia Communications Corp)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New YorkWisconsin without reference to conflict of law principles thereunder. This Agreement may be signed in various counterparts which together shall constitute one and the same instrument. If signed in counterparts, this Agreement and shall not become be effective unless when at least one counterpart hereof shall have been executed and delivered by or on behalf of each party hereto. [End of Text] 22 Please confirm that If the foregoing correctly sets forth is in accordance with your understanding of our agreement, kindly sign and return to us the enclosed duplicates hereof, whereupon it will be- come a binding agreement among the Trust, the Advisor Company and the Underwriterseveral Underwriters, including the Representatives, all in accordance with its terms. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST REGAL-BELOIT CORPORATION ("Company") By:___________: ----------------------------------------- James L. Packard, Chairman, Xxxxxxxxx and CEO The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above written. ROBERT W. BAIRD & CO. INCORPXXXXXX XXX XXXX ROTHSCHILD LLC CIBC WORLD MARKETS CORP. By: Robert W. Baird & Co. Incorpxxxxxx Acting as Representatives of the several Underwriters (including themselves) identified Annex A attached hereto. By: ------------------------------------------------ Its: ----------------------------------------------- ANNEX A Name of Underwriter Number of Firm Shares to be Purchased Robert W. Baird & Co. Incorpxxxxxx XXX XXXX Rothschild LLC CIBC World Markets Corp. ------- Total 3,000,000 ANNEX B SUBSIDIARIES State of Subsidiary Organization Equity Owners (Including %) ---------- ------------ --------------------------- Marathon Electric Manufacturing Corporation* Wisconsin Regal-Beloit Corporation (100%) Leeson Electric Corporation* Xxxxonsin Regal-Beloit Corporation (100%) Hub City, Inc.* Delaware Regal-Beloit Corporation (100%) Marathon Special Products Ohio Marathon Electric Manufacturing Corporation* Corporation (100%) Thomson Technology, Inc.* British Columbia Regal-Beloit Holdings, Inc. (Canada) (100%) Leeson Canada, Inc.* Xxxxrio (Canada) Leeson Electric Corporation (100%) Mastergear GmbH Germany Regal-Beloit Corporation (100%) Opperman Mastergear Limited Xxxxxx Kingdom Regal-Beloit Corporation (100%) Costruzioni Meccaniche Italy Regal-Beloit Corporation (100%) Legnanesi New York Twist Drill, Inc. Delaware Regal-Beloit Corporation (100%) Regal-Beloit Foreign Barbados Regal-Beloit Corporation (100%) Sales Corporation Regal-Beloit Flight Wisconsin Marathon Electric Manufacturing Services, Inc. Corporation (60%) Regal-Beloit Corporation (40%) Regal-Beloit Holdings Ltd. Yukon Territory Regal-Beloit Corporation (100%) (Canada) Marathon Redevelopment Missouri Marathon Electric Manufacturing Corporation Corporation (100%) Marathon Electric Far Singapore Marathon Electric Manufacturing East Pte Ltd. Corporation (100%) Thomson Finance, Ltd. British Columbia Regal-Beloit Holdings, Inc, (Canada) (100%) Patent Holdings Ltd. British Columbia Regal-Beloit Holdings, Inc, (Canada) (100%) Leeson Electric Xxxxonsin Leeson Electric Corporation Xxxxxnational, Inc. (100%) State of Subsidiary Organization Equity Owners (Including %) ---------- ------------ --------------------------- Shanghai Marathon GeXin China Marathon Electric Manufacturing Electric Company Ltd. Corporation (55%) _________________________ COLONIAL MANAGEMENT ASSOCIATES, INC. By:____________________________________ Confirmed as (45%) ---------------- * Denotes a "significant subsidiary" of the date first above mentionedCompany for purposes of this Agreement. SALOXXX XXXXX XXXNXX XXXOWNERSHIP OF EQUITY INTERESTS OF 5% OR MORE IN, OR CONTROL OF, OTHER CORPORATIONS, LIMITED LIABILITY COMPANIES, PARTNERSHIPS, JOINT VENTURES, ASSOCIATIONS, TRUSTS OR OTHER BUSINESS ORGANIZATIONS THAT ARE MATERIAL TO THE COMPANY OR ITS SUBSIDIARIES ON A CONSOLIDATED BASIS. By:______________________ Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A None ANNEX C FORM OF OPINION OF ROPES LOCK-UP AGREEMENT Robert W. Baird & GRAY Co. Incorpxxxxxx XXX XXXX Rothschild LLC CIBC World Markets Corp. As Representatives of the Several Underwriters c/o Robert W. Baird & Co. Incorpxxxxxx 000 Xxxx Wisconsin Avenue Mixxxxxxx, Xxxxxxxxx 00000 Xx: Xxxxx-Xxloit Corporation (the "Company") Ladies & Gentlemen: The Underwriter shall have received undersigned is an owner of record or beneficially of certain shares of Common Stock of the Company (the "Common Stock") or securities convertible into or exchangeable or exercisable for Common Stock. The Company proposes to carry out a public offering of Common Stock (the "Offering") for which you will act as the representatives (the "Representatives") of the underwriters. The undersigned recognizes that the Offering will be of benefit to the undersigned and will benefit the Company by, among other things, raising additional capital for its operations. The undersigned acknowledges that you and the other underwriters are relying on the Closing Date an opinion representations and agreements of Ropes the undersigned contained in this letter in carrying out the Offering and in entering into underwriting arrangements with the Company with respect to the Offering. In consideration of the foregoing, the undersigned hereby agrees that, without the prior written consent of Robert W. Baird & GrayCo. Incorpxxxxxx, counsel xxx xxxersigned will not, directly or indirectly, for a period commencing on the date hereof and continuing to a date 90 days after the date of the final prospectus for the TrustOffering (the "Lock-up Period"), dated offer, sell, transfer, or pledge, contract to sell, transfer or pledge, or cause or in any way permit to be sold, transferred, pledged, or otherwise disposed of (collectively, a "Disposition") any (i) shares of Common Stock; (ii) rights, options, or warrants to purchase shares of Common Stock (including, without limitation, shares of Common Stock that may be deemed to be beneficially owned by any such shareholder in accordance with the Closing Date applicable regulations of the Commission and addressed shares of Common Stock that may be issued upon the exercise of a stock option, warrant or other convertible security), it being agreed, however, that neither the exercise of a stock option nor the withholding or surrender of Securities to cover applicable taxes on an option exercise shall be considered a Disposition; or (iii) securities that are convertible or exchangeable into shares of Common Stock now owned or hereafter acquired directly by such person or with respect to which such person has or hereafter acquires the power of disposition (collectively, the "Securities"). The foregoing sentence shall not apply to the UnderwriterDisposition of any or all of the Securities by gift, will or intestacy, provided that in form and substance satisfactory any such case it shall be a condition to the Underwriter Disposition that the transferee execute an agreement stating that the transferee is receiving and holding the Securities subject to the effect that:
a. provisions of this Lock-up Letter and there shall be no further Disposition of such Securities except in accordance with this Lock-up Letter. The Trust is a business trust duly organized and validly existing in good standing under foregoing restriction has been expressly agreed to preclude the laws holder of the Commonwealth Securities from engaging in any hedging or other transaction which is designed to or reasonably expected to lead to or result in a Disposition of Massachusetts the Securities during the Lock-up Period, even if such Securities would be disposed of by someone other than such holder. Such prohibited hedging or other transactions would include, without limitation, any short sale (whether or not against the box) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to any Securities or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Securities. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company's transfer agent and registrar against the transfer of Securities held by the undersigned except in compliance with the foregoing restrictions. The undersigned represents and warrants that the undersigned has full power and authority to own, lease enter into this agreement and operate its properties acknowledges that this agreement is enforceable against the undersigned by the Representative. This agreement is irrevocable and to conduct its business as described in will be binding on the Registration Statement undersigned and the Prospectus respective successors, heirs, personal representatives, and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms assigns of the Underwriting Agreementundersigned. Very truly yours, will be validly issued, fully paid and nonassessable and free ------------------------------------ [Name of any preemptive officer or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the Bydirector] ANNEX D LIST OF OFFICERS AND DIRECTORS SUBJECT TO LOCK-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.UP James L. Packard Hxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxx Xxxxx X. Xxxxxxxxch Xxxx X. Xxxxxxxx Fxxxx Xxxxxxxxxx Fxxxx X. Xxxxxxxxo X. Xxxx Xxxxxxx Joxx X. Xlxxxx Xxxxxxx X. Xxxxx Pxxx X. Xxxxx
Appears in 1 contract
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement may be signed in various counterparts counterparts, which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of TextSignature Page Follows] 22 Please confirm that the foregoing correctly sets forth the agreement among the TrustFund, the Advisor Investment Manager, the Sub-Adviser and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL REAL ESTATE INCOME TRUST FUND INC. By:________: ____________________________ COLONIAL Name: Title: CITI FUND MANAGEMENT ASSOCIATES, INC. By:________: ____________________________ Confirmed as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXX. Name: Title: AEW MANAGEMENT AND ADVISORS, L.P. By:: AEW Investment Group Inc., its General Partner By: ___________________________ Managing Director 23 Name: Title: Confirmed as of the date first above mentioned on behalf of itself and the other Several Underwriters named in Schedule I hereto: XXXXXXX XXXXX XXXXXX INC. As Representative of the Several Underwriters By: Xxxxxxx Xxxxx Xxxxxx Inc. By: ___________________________ Name: Title: SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Real Estate Income Fund Inc. Underwriter Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx ---------------- Series M -------- Xxxxxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT Xxxxxx Inc. .....................................2,600 Total 2,600 Exhibit A FORM PROVISIONS OF OPINION OF ROPES Xxxxxxx Xxxx & GRAY Xxxxxxxxx
(i) The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date Fund (A) has been duly incorporated and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing and in good standing as a corporation under the laws of the Commonwealth State of Massachusetts Maryland with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to issue either of them), and sell (B) is duly registered and qualified to conduct its business and is in good standing in the Shares State of New York (which is the only jurisdiction identified by management of the Fund to such counsel in which the Fund owns or leases property or operates or conducts its business);
(ii) The statements made in the Prospectus under the captions "Description of Common Stock" and "Description of Preferred Shares", insofar as contemplated they purport to constitute summaries of the terms of the Fund's capital stock, constitute accurate summaries of the terms of such capital stock in all material respects;
(iii) All outstanding shares of capital stock of the Fund have been duly authorized and validly issued by the Underwriting AgreementFund, and are fully paid and nonassessable;
b. (iv) The Shares have been duly authorized and, when issued and delivered to the Underwriter Underwriters against payment therefor in accordance with the terms of the Underwriting this Agreement, will be validly issuedissued by the Fund, fully paid and nonassessable and free nonassessable. There are no preemptive rights under federal or New York law or under the Maryland General Corporation Law to subscribe for or purchase shares of any the Fund's capital stock. There are no preemptive or similar other rights and will conform to subscribe for or to purchase, nor any restriction upon the issuance, voting or, except certain transfer restrictions as provided in the Articles Supplementary with respect to the description thereof in Shares, transfer of, any shares of the Fund's capital stock pursuant to the Fund's Charter, Articles Supplementary, or Bylaws or any agreement or other instrument filed or incorporated by reference as an exhibit to the Registration Statement;
(v) The form of the certificate for the Shares conforms to the requirements of the Maryland General Corporation Law;
(vi) The Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rightspost-effective amendments, interestsif any, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is have become effective under the 1933 Act and the 1933 Act Rules and Regulations and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or order pursuant to Section 8(e) of the 1940 ActAct relating to the Fund has been issued and no proceedings for that purpose are pending before or threatened by the Commission; and any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within in accordance with Rule 497;
(A) This Agreement and each of the time periods required Fund Agreements have been duly authorized, executed and delivered by Rule 497(bthe Fund and (B) each of the Fund Agreements, assuming that the Fund Agreements are the valid and legally binding obligations of the other parties thereto, is a valid and legally binding agreement of the Fund, enforceable against the Fund in accordance with its terms (except that we express no opinion as to the reasonableness or fairness of compensation payable under the Investment Management Agreement or the Sub-Advisory Agreement), subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and by general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing;
(viii) The issuance and sale of the Shares by the Fund and the compliance by the Fund with the provisions of this Agreement and the Fund Agreements will not breach or result in a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement, nor will such action violate the Charter, Articles Supplementary or Bylaws of the Fund or (h)assuming compliance with state securities and Blue Sky laws) any federal or New York statute or any rule or regulation thereunder or the Maryland General Corporation Law or any rule or regulation thereunder or order known to us issued pursuant to any federal or New York statute or the Maryland General Corporation Law by any court or governmental agency or body having jurisdiction over the Fund or any of its properties;
(ix) No consent, as the case may be; approval, authorization, order, registration, filing or qualification of or with any federal or New York governmental agency or body or any Maryland governmental agency or body acting pursuant to the best Maryland General Corporation Law or, to such counsel's knowledge, any federal or New York court or any Maryland court acting pursuant to the Maryland General Corporation Law is required for the issue and sale of the Shares by the Fund and the compliance by the Fund with all of the provisions of this Agreement and the Fund Agreements, except for such consents, approvals, authorizations, registrations, filings or qualifications as have been made or as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters;
(x) To the knowledge of such counsel, no stop order suspending its effectiveness (A) other than as described or order pursuant to Section 8(e) of contemplated in the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement or any amendment or supplement to either of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdictionthem), there are no legal or governmental proceedings pending or threatened against the TrustFund, or to which the Trust Fund or any of its properties is subject, that which are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best (or any amendment or supplement to either of such counsel's knowledge after reasonable inquiry, them) and (B) there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) or to be filed as an exhibit to the Registration Statement that are not described or filed as required required, or incorporated by reference, as the 1933 Act, the 1940 Act or the Rules and Regulationscase may be;
j. Neither (xi) The statements made in the issuance and sale Prospectus under the captions "Management of the Fund", "Description of Common Stock", "Description of Preferred Shares", "The Auction", "Investment Manager and Sub-Adviser" and "Additional Information Concerning the executionAuction for Preferred Shares", delivery or performance insofar as they purport to constitute summaries of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements Maryland General Corporation Law or any federal statutes, rules and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement regulations thereunder or the Prospectus (other than as set forth in (f)Fund's Charter, (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, Bylaws or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser Articles Supplementary or any Fund Agreements, constitute accurate summaries of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of such statutes, rules and regulations or the Fund's Charter, Bylaws or Articles Supplementary or the Fund Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a all material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.respects;
Appears in 1 contract
Samples: Underwriting Agreement (Real Estate Income Fund Inc)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New YorkFlorida without reference to choice of law principles thereunder. This Agreement may be signed in various counterparts counterparts, which together shall constitute one and the same instrument. If signed in counterparts, this This Agreement shall not become be effective unless when, but only when, at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End The Company, the Selling Stockholders and the Underwriters each hereby irrevocably waive any right they may have to a trial by jury in respect to any claim based upon or arising out of Text] 22 this Agreement or the transactions contemplated hereby. Please confirm that the foregoing correctly sets forth the agreement among the TrustCompany, the Advisor Selling Stockholders and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST Warrior Energy Services Corporation President and Chief Executive Officer The Selling Stockholders Named in Schedule II Hereto, Acting Severally By:____________________________________ COLONIAL MANAGEMENT ASSOCIATES, INC. By:____________________________________ Confirmed : ------------------------------------------ Attorney-in-Fact CONFIRMED as of the date first above mentioned, on behalf of the Representative and the other several Underwriters named in Schedule I hereto. SALOXXX XXXXXXX XXXXX XXXNXX XXX& ASSOCIATES, INC. By:______________________ Managing Director 23 : -------------------------------------------------- Authorized Representative -38- SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST NUMBER NAME FIRM SHARES ---- ----------- XXXXXXX XXXXX & ASSOCIATES, INC. 3,189,360 XXXXXXX & COMPANY INTERNATIONAL 3,189,360 XXXXXXX XXXX & COMPANY L.L.C. 1,594,680 XXXXXX XXXXXXX XXXXXXXX XXXXXXX, INC. 82,200 XXXXXXXXXXX & CO. INC. 82,200 XXXXXXXXX ENERGY PARTNERS, INC. 82,200 ---------- TOTAL: 8,220,000 ========== SCHEDULE II SCHEDULE OF SELLING STOCKHOLDERS Number of Firm Shares Stockholder to be Sold ----------- ---------- Xxxxx X. Xxxxxxx Declaration Trust 22,333 Xxxxxxx and Xxxx Xxxxxx 47,893 Blackcross 119,370 CGMI XXX Custodian for benefit of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxxxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM 35,756 Xxxx and Xxxxx Xxxx 23,874 Xxx Xxxxxxx, Jr. 34,314 Cranberry Ventures LLC 4,000 XX Xxxxxxx Living Trust 34,388 Xxxxxx Xxxxxx 25,000 Xxxxxxx X. Xxxxxx Living Trust 23,946 Xxx X. Xxxxxxx 13,300 Xxx X. Xxxxx 333 Xxxxx X. XxXxxx 23,946 Xxxxx X. Xxxxxx 1,667 Xxxxxx X. Xxxxxxx Insurance Trust DTD 47,748 Xxxxxxx Xxxxxxx 23,872 Xxxx Xxxxxxxxxxx 23,837 Xxxxxxx X. Xxxxxxxx 12,706 The Estate of Xxxxx Xxxxxx 11,936 Smeets Investors, LLC 47,893 W. Xxxxx Xxxxx 4,167 Estate of Xxxxxxx X. Xxxx, Xx. 10,187 SCHEDULE III SCHEDULE OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:ISSUER FREE WRITING PROSPECTUSES
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described A. Included in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;Time of Sale Information
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof 1. None.
B. Not Included in the Registration Statement Time of Sale Information 1. Electronic Roadshow. SCHEDULE IV PERSONS DELIVERING LOCK-UP AGREEMENTS
1. Executive Officers
2. Directors
3. Selling Stockholders
4. SJMB, L.P.
5. St. Xxxxx Capital Partners, L.P. -42- SCHEDULE V RECAPITALIZATION AGREEMENTS
1. Recapitalization Agreement by and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rightsbetween Black Warrior Wireline Corp., interests, powers and preferences of the Sharesa Delaware corporation, and the obligation of the Trust to redeem such Shares upon the terms Xxxxxxx X. Xxxxxxx. 2. Recapitalization Agreement by and conditions set forth in the By-Lawsbetween Black Warrior Wireline Corp., are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectusa Delaware corporation, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingBlackcross.
Appears in 1 contract
Samples: Underwriting Agreement (Warrior Energy Services CORP)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the TrustFund, the Advisor Adviser, the Sub-Adviser and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL ING CLARION REAL ESTATE INCOME TRUST FUND By:: ____________________________________________ COLONIAL MANAGEMENT ASSOCIATESName: Title: ING CLARION REAL ESTATE SECURITIES, INC. L.P. By:: ____________________________________________ Confirmed as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXX. Name: Title: CLARION CAPITAL LLC By:: ____________________________________________ Managing Director 23 Name: Title: Confirmed as of the date first above written on behalf of themselves and the other several Underwriters named in Schedule I hereto. AS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS X.X. XXXXXXX & SONS, INC. By: _________________________________ Name: Title: SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Underwriters Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx ------------ ---------------- X.X. Xxxxxxx & Sons, Inc. 1680 Xxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 Incorporated 1680 Citigroup Global Markets Inc. 840 Total 4,200 EXHIBIT A [Form of opinion to be provided by Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP] EXHIBIT B FORM OF OPINION OF ROPES & GRAY [ ] ADVISER OPINION
1. The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust Adviser is a business trust duly organized and validly existing in good standing as a corporation under the laws of the Commonwealth [ ] of Massachusetts [ ] with full corporate power and authority to own, own or lease and operate its properties all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus and to issue enter into and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective perform its obligations under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;Adviser Agreements.
c. 2. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Investment Company Act Rules and Regulations from acting as investment adviser for the Fund under the Management Advisory Agreement for the Trust as contemplated by the Registration Statement and the Prospectus;.
d. 3. The Underwriting Agreement and each Adviser Agreement has been duly and validly authorized, executed and delivered by the Adviser; each Adviser Agreement complies in all material respects with all provisions of the Investment Company Act and the Advisers Act; and assuming due authorization, execution and delivery by each of the other parties thereto, each Adviser Agreement constitutes a legal, valid and binding obligation of the Adviser, enforceable against the Adviser in accordance with its terms, (1) subject, as to enforcement, to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other 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) except as rights to indemnity thereunder may be limited by public policy or federal or state securities laws (except that counsel may state that it expresses no opinion as to the reasonableness or fairness of compensation payable under the Advisory Agreement or the Sub-Advisory Agreement).
4. Neither (A) the execution and delivery by the Adviser of the Underwriting Agreement or of any Adviser Agreement nor (B) the consummation by the Adviser of the transactions contemplated by, or the performance of its obligations under, the Underwriting Agreement or any Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, (i) the charter or by-laws of the Adviser, (ii) any agreement or instrument listed on an Annex to such opinion (which the Adviser, in an officer's certificate accompanying such opinion or otherwise delivered to the Underwriters on the Closing Date, shall have identified as the only material agreements or instruments to which the Adviser is a party or by which the Adviser is bound) or (iii) any applicable United States federal or [ ] law, rule or regulation (other than state securities or "blue sky" laws, as to which such counsel need express no opinion), or order of any [ ] or United States federal court, governmental instrumentality, securities exchange or association or arbitrator, (or any other orders of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, in any other jurisdiction, as set forth on an Annex to such opinion (which the Adviser, in an officer's certificate accompanying such opinion or otherwise delivered to the Underwriters on the Closing Date, shall have identified as the only orders that are material to the Adviser) in each case specifically naming the Adviser and (in the case of [ ] or United States federal orders) known to such counsel, except in the case of each of clauses (ii) and (iii) for such conflicts or breaches which do not, either alone or in the aggregate, have a material adverse effect on the Adviser's ability to perform its obligations under the Underwriting Agreement or the Adviser Agreements.
5. To the best of such counsel's knowledge after reasonable inquiryknowledge, no consent, approval, authorization or order of any New York or United States federal court, governmental agency or body or securities exchange or association is required for the consummation of the transactions contemplated in, or the performance by the Adviser of its obligations under, the Underwriting Agreement or any Adviser Agreement, except (i) such as have been obtained under the United States federal securities laws and (ii) 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 the Underwriting Agreement.
6. To such counsel's knowledge, there are is no legal or governmental proceedings proceeding pending or threatened against the Adviser, or to which the Adviser or any of its properties that is subject, that are either (i) required to be described in the Registration Statement or the Prospectus but are that is not described as required;
e. To therein or (ii) which would, under Section 9 of the best of such counsel's knowledge after reasonable inquiryInvestment Company Act, make the Adviser ineligible to act as the Fund's investment adviser. EXHIBIT C FORM OF [ ] SUB-ADVISER OPINION
1. The Sub-Adviser is validly existing as a limited liability company under the laws of the [ ] of [ ] with full power and authority 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 to enter into and perform its obligations under the Underwriting Agreement and Sub-Advisory Agreement.
2. The Sub-Adviser is duly registered as an investment adviser under the Advisers Act and is not in violation of its corporate charter prohibited by the Advisers Act or bythe Investment Company Act from acting as investment adviser for the Fund under the Sub-laws, nor is Advisory Agreement as contemplated by the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;Registration Statement and the Prospectus.
f. Neither the execution, delivery or performance 3. Each of the Underwriting Agreement and the Sub-Advisory Agreement has been duly and validly authorized, executed and delivered by the Sub-Adviser; the Sub-Advisory Agreement complies in all material respects with all provisions of the Investment Company Act and the Advisers Act; and assuming due authorization, execution and delivery by each of the other parties thereto, the Sub-Advisory Agreement constitutes a legal, valid and binding obligation of the Sub-Adviser, enforceable against the Sub-Adviser in accordance with its terms, (1) subject, as to enforcement, to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other 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) except as rights to indemnity thereunder may be limited by public policy or federal or state securities laws (except that counsel my state that it expresses no opinion as to the reasonableness or fairness of compensation payable under the Sub-Advisory Agreement).
4. Neither (A) the execution and delivery by the Sub-Adviser of the Underwriting Agreement or the Sub-Advisory Agreement nor (B) the consummation by the Sub-Adviser of the transactions contemplated hereby by, or thereby the performance of its obligations under, the Underwriting Agreement or the Sub-Advisory Agreement conflicts or will conflict with, or results or will result in a breach of, (Ai) requires the organizational documents of the Sub-Adviser, (ii) any agreement or instrument listed on an Annex to such opinion (which the Sub-Adviser, in an officer's certificate accompanying such opinion or otherwise delivered to the Underwriters on the Closing Date, shall have identified as the only material agreements or instruments to which the Adviser is a party or by which the Sub-Adviser is bound) or (iii) any applicable United States federal or [ ] law, rule or regulation (other than state securities or "blue sky" laws, as to obtain which such counsel need express no opinion), or order of any [ ] or United States federal court, governmental instrumentality, securities exchange or association or arbitrator, (or any other orders of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, in any other jurisdiction, as set forth on an Annex to such opinion (which the Sub-Adviser, in an officer's certificate accompanying such opinion or otherwise delivered to the Underwriters on the Closing Date, shall have identified as the only orders that are material to the Sub-Adviser) in each case specifically naming the Sub-Adviser and (in the case of [ ] or United States federal orders) known to such counsel, except in the case of each of clauses (ii) and (iii) for such conflicts or breaches which do not, either alone or in the aggregate, have a material adverse effect on the Sub-Adviser's ability to perform its obligations under the Underwriting Agreement or the Sub-Advisory Agreement.
5. To such counsel's knowledge, no consent, approval, authorization or other order of any New York or registration United States federal court, governmental agency or filing withbody or securities exchange or association is required for the consummation of the transactions contemplated in, or the performance by the Sub-Adviser of its obligations under, the CommissionUnderwriting Agreement or the Sub-Advisory Agreement, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official except (except i) such as may have been obtained prior to under the date hereof United States federal securities laws and such as (ii) may be required for compliance with by the New York Stock Exchange or under state securities or "blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-sky" laws, or other organizational 28 2 documents, in connection with the purchase and distribution of the Shares by the Underwriters pursuant to the Underwriting Agreement.
6. To such counsel's knowledge, there is no legal or governmental proceeding pending or threatened against the Sub-Adviser or (B) that is either (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument required to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser described in the Registration Statement or Prospectus that is not described therein or (ii) which would, under Section 9 of the Investment Company Act, make the Sub-Adviser ineligible to act as the Fund's investment Adviser. EXHIBIT D FORM OF [ ] COMFORT LETTER [ ], 2003 The Board of Trustees of ING Clarion Real Estate Income Fund 000 Xxxxx Xxxxxx Xxxxxxx Xxxx Suite 205 Radnor, Pennsylvania 19087 X.X. Xxxxxxx & Sons, Inc. Xxx Xxxxx Xxxxxxxxx Xxxxxx Xx. Xxxxx, Xxxxxxxx 00000 as Managing Representative of the Underwriters Ladies and Gentlemen: We have audited the statement of assets and liabilities of ING Clarion Real Estate Income Fund Inc. (the "Fund") as of [ ], 2003 (the "financial statement") included in Pre-effective Amendment No. 2 to the Registration Statement on Form N-2 filed by the Fund under the Securities Act of 1933 (the " 1933 Act") (File No. 333-107158) and under the Investment Company Act of 1940 (the "1940 Act," collectively, the 1933 Act and the Prospectus does not contain an untrue 1940 Act, the "Acts") (File No. 811-21404); such statement and our report with respect to such statement are included in the Registration Statement. In connection with the Registration Statement:
1. We are independent auditors with respect to the Fund within the meaning of the Acts and the applicable rules and regulations adopted thereunder by the Securities and Exchange Commission (the "SEC").
2. In our opinion, the financial statement audited by us and included in the Registration Statement complies as to form in all respects with the applicable accounting requirements of the Acts and the related rules and regulations thereunder adopted by the SEC.
3. For purposes of this letter we have read the minutes of all meetings of the Shareholders, the Board of Trustees and all Committees of the Board of Trustees of the Fund as set forth in the minute books at the offices of the Fund, officials of the Fund having advised us that the minutes of all such meetings through [ ], 2003, were set forth therein.
4. Fund officials have advised us that no financial statements as of any date subsequent to [ ], 2003, are available. We have made inquiries of certain officials of the Fund who have responsibility for financial and accounting matters regarding whether there was any change at [ ], 2003, in the capital shares or net assets of the Fund as compared with amounts shown in the [ ], 2003, statement of a material fact assets and liabilities included in the Registration Statement, except for changes that the Registration Statement discloses have occurred or omit may occur. On the basis of our inquiries and our reading of the minutes as described in Paragraph 3, nothing came to state a material fact required our attention that caused us to believe that there were any such changes.
5. In addition to the procedures referred to in clauses 3 and 4 about, we have performed other specified procedures, not constituting and audit, with respect to certain amounts, percentages, numerical data and financial information appearing in the Registration Statement, which have previously been specified by the Managing Representative and which shall be specified in this letter, and have compared such items with, and have found such items to be stated therein or necessary to make in agreement with, the statements therein, in light accounting and financial records of the circumstances under which they Fund.
6. With respect to the interim financial statements for the period from [ ], 2003 (commencement of investment operations) through [ ], 2003, we have:
a. read the unaudited statement of assets and liabilities, including the unaudited schedule of investments, at [ ], 2003 and the related unaudited statements of operations and changes in net assets for the period from [ ], 2002 (commencement of investment operations) through [ ], 2003, included in the Registration Statement, officials of the Fund having advised us that no such financial statements as of any date or for any period subsequent to [ ], 2003 were madeavailable; and
b. inquired of certain officials of the Fund who have responsibility for financial and accounting matters as to: (i) whether the unaudited financial highlights referred to in 6.a above comply as to form in all material respects with the applicable accounting requirements of the Acts and the published rules and regulations thereunder, not misleadingand (ii) whether the unaudited financial statements referred to in 6.a. above are in conformity with accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement.
Appears in 1 contract
Samples: Underwriting Agreement (Ing Clarion Real Estate Income Fund)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the TrustFund, the Advisor Adviser, and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MBIA CAPITAL/CLAYMORE MANAGED DURATION INVESTMENT GRADE MUNICIPAL INCOME TRUST FUND By:____________________________________ COLONIAL : ---------------- Title: MBIA CAPITAL MANAGEMENT ASSOCIATES, INCCORP. By:____________________________________ : ---------------- Title: Confirmed as of the date first above mentionedwritten on behalf of themselves and the other several Under- writers named in Schedule I hereto. SALOXXX XXXXX XXXNXX XXXAS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS
X. X. XXXXXXX & SONS, INC. By:______________________ Managing Director 23 : ---------------------------------- Title: SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Underwriter Number of Shares ----------- ---------------- X.X. Xxxxxxx & Sons, Inc. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Advest, Inc. Xxxxxx X. Xxxxx & Co., Incorporated BB&T Capital Markets, a division of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 & Xxxxxxxxxxxx, Inc. Xxxxxx, Xxxxx Xxxxx, Incorporated J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. Xxxx Xxxxx Xxxx Xxxxxx, Incorporated McDonald Investment, Inc. Xxxxxx Xxxxxxxxxx Xxxxx LLC Quick & Xxxxxx, Inc. RBC Xxxx Xxxxxxxx, Inc. The Xxxxxxx Companies Incorporated SunTrust Xxxxxxxx Xxxxxxxx Xxxxx Fargo Securities LLC 50 EXHIBIT A FORM OF OPINION OF ROPES XXXXXXX XXXXXXX & GRAY XXXXXXXX LLP OPINION
1. The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date Fund (A) has been duly formed and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing and in good standing as a statutory trust under the laws of the Commonwealth State of Massachusetts with Delaware and has full statutory trust power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and (B) filed an Application for Authority to issue do business in the State of New York (which is the only jurisdiction identified by management of the Fund to us in which the Fund owns or leases property or operates or conducts its business) on _______ __, 2003, and sell the Shares so far as contemplated shown by the Underwriting Agreementrecords of the Department of State of the State of New York, the Fund is still authorized to do business in the State of New York;
b. 2. The statements made in the Prospectus under the caption "Description of Shares - Common Shares," insofar as they purport to constitute summaries of the terms of the Fund's common shares of beneficial interest, constitute accurate summaries of the terms of such common shares of beneficial interest under the Fund's Amended and Restated Agreement and Declaration of Trust (the "Declaration"), By-Laws and under the Delaware Statutory Trust Act (the "DSTA") in all material respects;
3. All outstanding shares of beneficial interest of the Fund have been duly authorized and validly issued by the Fund, and are fully paid and nonassessable;
4. The Shares have been duly authorized and, when issued upon payment and delivered to the Underwriter against payment therefor delivery in accordance with the terms of the Underwriting Agreement, will be validly issuedissued by the Fund, fully paid and nonassessable and free of any nonassessable. There are no preemptive rights under federal or similar rights and will conform New York law or under the DSTA to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such subscribe for or purchase Shares upon the terms and conditions set forth in issuance thereof by the By-Laws, Fund. There are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding no preemptive or other rights to subscribe for or to purchase any shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus Fund's pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) Fund's Declaration, By-Laws or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements agreement or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws instrument filed or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed incorporated by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed reference as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is otherwise known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instrumentsus;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Mbia Capital Claymore Man Dur Inv GRD Muni Fund)
Applicable Law; Counterparts. This Agreement shall be governed by ---------------------------- and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among between the Trust, the Advisor Company and the Underwriterseveral Managers. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST HYPERION TELECOMMUNICATIONS, INC. By:____________________: ----------------------------------------- Name: Title: Confirmed as of the date first above mentioned on behalf of themselves and the other several Managers named in Schedule I hereto. XXXXX XXXXXX INC. CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED NATIONSBANC XXXXXXXXXX SECURITIES LLC As Lead Managers for the Several Managers By: XXXXX XXXXXX INC. By: ----------------------------------------- Name: Title: SCHEDULE I HYPERION TELECOMMUNICATIONS INC. Manager Number of Shares ------- ---------------- Xxxxx Xxxxxx Inc. Credit Suisse First Boston (Europe) Limited NationsBanc Xxxxxxxxxx Securities LLC ________________ COLONIAL MANAGEMENT ASSOCIATESTOTAL SCHEDULE II Xxxxxx X. Xxxxxxxx Xxxxxxx X Xxxxxxxx Xxxx X. Xxxxxxxx Xxxxxxxx X. Xxxxxx SCHEDULE III ------------ SUBSIDIARIES ------------ SCHEDULE IV ------------ JOINT VENTURES -------------- EXHIBIT A --------- LIST OF EMPLOYEE PENSION AND BENEFIT ------------------------------------ PLANS OF HYPERION TELECOMMUNICATIONS, INC. By:____________________________________ Confirmed as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXX. By:______________________ Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- ------------------------------------------ AND ITS SUBSIDIARIES -------------------- EXHIBIT B --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on XXXXXXXX INGERSOLL -------------------------------------
1. Each of the Closing Date an opinion of Ropes & Gray, counsel for Company and the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust Subsidiaries is a business trust duly organized and validly existing as a corporation or a limited liability company in good standing under the laws of its jurisdiction of formation, as applicable, and has all requisite corporate power and authority to carry on its business as it is being conducted and as described in the Commonwealth Registration Statement and the Prospectuses and to own, lease and operate its properties, and is duly qualified and in good standing as a foreign corporation or limited liability company, as applicable, authorized to do business in each jurisdiction in which the nature of Massachusetts with full its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not, singly or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect").
2. Each of the Joint Ventures has been duly incorporated or formed as a corporation, general partnership, limited partnership or limited liability company under the laws of its jurisdiction of incorporation or formation, as applicable, and has all requisite power and authority to own, lease lease, and operate its properties and to conduct its business as described in the Registration Statement Prospectuses, and is duly qualified to transact business as a foreign corporation, general partnership, limited partnership or limited liability company, as applicable, in each jurisdiction in which the Prospectus character of the business being conducted by it or the location of the property owned by it makes such qualification necessary, except where the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect. Each Joint Venture that is a corporation, limited partnership or limited liability company is validly existing and is in good standing under the laws of its jurisdiction of incorporation or formation, as applicable.
3. All of the outstanding shares of capital stock of the Company have been duly authorized, validly issued, and are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights. All of the outstanding shares of capital stock of the Company is as set forth in the Prospectuses under the caption "Capitalization." The authorized capital stock of the Company conforms in all material respects as to issue and sell legal matters to the description thereof contained in the Prospectuses under the caption "Description of Capital Stock."
4. All the shares of capital stock of the Company outstanding prior to the issuance of the Shares as contemplated to be issued and sold by the Company pursuant to the Underwriting Agreement;
b. The Shares Agreements have been duly authorized andand validly issued, and are fully paid and nonassessable.
5. The Underwritten Shares to be issued and sold to the U.S. Underwriters and Managers by the Company under the U.S. Underwriting Agreement and the International Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriter U.S. Underwriters and Managers against payment therefor in accordance with the terms of the U.S. Underwriting Agreement and the International Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any (A) preemptive rights or (B) to the best knowledge of such counsel after reasonable inquiry, similar rights that entitle or will entitle any person to acquire any shares of Class A Common Stock upon the issuance thereof by the Company.
6. The Adelphia New Shares (as defined in the Prospectuses) have been duly authorized and will conform when issued and delivered to the description thereof Parent against payment therefor in accordance with the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences terms of the Shares, and Adelphia Share Purchase Agreement or the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h)Adelphia Note Contribution Agreement, as the case may be; , will be validly issued, fully paid and nonassessable and free of (A) preemptive rights or (B) to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases similar rights that entitle or other instruments that are required will entitle any person to be described acquire any shares of Class A Common Stock upon the issuance thereof by the Company.
7. The Additional MCI Warrants (as defined in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (AProspectuses) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof duly authorized and, when executed and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust delivered pursuant to the terms of the Agreements Warrant Agreement (the "MCI Warrant Agreement"), dated June 13, 1997, between the Company and Instruments;
k. theretoMCImetro Access Transmission Services, each Trust Agreement constitutes the Inc. ("MCI"), will be valid and binding obligation obligations of the Trust Company, enforceable against the Company in accordance with their terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforceability of creditors' rights generally and by general principles of equity (whether arising under a proceeding at law or in equity).
8. The maximum number of Shares issuable upon exercise of the Additional MCI Warrants has been duly authorized and reserved for issuance by the Company at the time and in the manner required by the MCI Warrant Agreement and, upon (i) due exercise of the Additional MCI Warrants and (ii) delivery of Shares upon such exercise, in each case, in accordance with the terms of the Additional MCI Warrants and the MCI Warrant Agreement, such Shares will be validly issued, fully paid and nonassessable.
9. Upon due issuance of the Additional MCI Warrants, the Company will have satisfied its obligation to issue "Additional Initial Warrants" (as such term is defined in the MCI Warrant Agreement) under Section 2.2 of the MCI Warrant ----------- Agreement.
10. The Adelphia Warrant (as defined in the Prospectuses) has been duly authorized and, when executed and delivered pursuant to the terms of the MCI Agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements enforcement may be limited by Federal or state securities laws, subject as to enforcement to applicable bankruptcy, insolvency, reorganization reorganization, moratorium and other similar laws affecting the enforceability of general applicability relating to or affecting creditors' rights generally and to by general principles of equity principles;(whether arising under a proceeding at law or in equity).
l. 11. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions maximum number of Shares issuable upon exercise of the Declaration Adelphia Warrant has been duly authorized and By-Laws reserved for issuance by the Company and, upon (i) due exercise of the Trust Adelphia Warrant and (ii) delivery of Shares upon such exercise, in each case, in accordance with the terms of the Adelphia Warrant, such Shares will be validly issued, fully paid and nonassessable.
12. The form of certificates for the Underwritten Shares and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with Adelphia New Shares conforms to the requirements of the 1940 Act Nasdaq National Market and the 1940 Delaware General Corporation Law.
13. The Registration Statement and all post-effective amendments, if any, have become effective under the Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Dateand, to the effect that best knowledge of such counsel has acted for after reasonable inquiry, no stop order suspending the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review effectiveness of the Registration Statement has been issued and Prospectus no proceedings for that purpose are pending before or contemplated by the Commission; and discussion any required filing of the contents of Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b).
14. The Company has the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in enter into the Registration Statement and the Prospectus;
b. The U.S. Underwriting Agreement and the Management International Underwriting Agreement and to issue, sell and deliver the Shares to be sold by it to the U.S. Underwriters and Managers as provided therein, and each of the U.S. Underwriting Agreement and the International Underwriting Agreement have been duly authorized, executed and delivered by the Advisor Company and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the is a legal, valid and binding obligation agreement of the Advisor Company, enforceable against the Company in accordance with its terms, subject as to enforcement to except that (A) enforceability may be limited by bankruptcy, insolvency, reorganization and reorganization, moratorium or other similar laws of general applicability not or hereafter in effect relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Actgenerally, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or the remedy of specific performance and other instrument forms of equitable relief may be subject to certain equitable defenses and to the discretion of the court before which the Trust is a party or by which it or any of its properties proceedings may be bound brought and (the "Agreements C) rights to indemnity and Instruments") contribution thereunder may be limited by Federal or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws or the public policy underlying such laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: International Underwriting Agreement (Hyperion Telecommunications Inc)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among between the Trust, the Advisor Company and the Underwriterseveral Managers. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST HYPERION TELECOMMUNICATIONS, INC. By:____________________: /s/ Edward E. Babcock Name: Title: Vice President Confirmed as of the date first above mentioned on behalf of themselves and the other several Managers named in Schedule I hereto. SMITH BARNEY INC. CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED NATIOXXXXXX XXXXXOMERY SECURITIES LLC As Lead Managers for the Several Manxxxxx Xx: SMITH BARNEY INC. By: /s/ M.E. Andersen Name: Title: Managing Direxxxx SCHEDULE I HYPERION TELECOMMUNICATIONS INC. Manager Number of Shares Smith Barney Inc. Credit Suisse First Boston (Europe) Limited NatioxxXxxx Xxxxxomery Securities LLC ________________ COLONIAL MANAGEMENT ASSOCIATESXXXXX SCHEDULE II Daniel R. Milliard Charles R Drenning Paul D. Fajerski Randolph X. Xxxxxx XXXXXXLE XXX SUBSIDIARIES SCHEDULE IV JOINT VENTURES EXHIBIT A LIST OF EMPLOYEE PENSION AND BENEFIT PLANS OF HYPERION TELECOMMUNICATIONS, INC. By:____________________________________ Confirmed as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXX. By:______________________ Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 AND ITS SUBSIDIARIES EXHIBIT A B FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on BUCHANAN INGERSOLL
1. Each of the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date Company and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust thx Xxxxxxiaries is a business trust duly organized and validly existing as a corporation or a limited liability company in good standing under the laws of its jurisdiction of formation, as applicable, and has all requisite corporate power and authority to carry on its business as it is being conducted and as described in the Commonwealth Registration Statement and the Prospectuses and to own, lease and operate its properties, and is duly qualified and in good standing as a foreign corporation or limited liability company, as applicable, authorized to do business in each jurisdiction in which the nature of Massachusetts with full its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not, singly or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect").
2. Each of the Joint Ventures has been duly incorporated or formed as a corporation, general partnership, limited partnership or limited liability company under the laws of its jurisdiction of incorporation or formation, as applicable, and has all requisite power and authority to own, lease lease, and operate its properties and to conduct its business as described in the Registration Statement Prospectuses, and is duly qualified to transact business as a foreign corporation, general partnership, limited partnership or limited liability company, as applicable, in each jurisdiction in which the Prospectus character of the business being conducted by it or the location of the property owned by it makes such qualification necessary, except where the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect. Each Joint Venture that is a corporation, limited partnership or limited liability company is validly existing and is in good standing under the laws of its jurisdiction of incorporation or formation, as applicable.
3. All of the outstanding shares of capital stock of the Company have been duly authorized, validly issued, and are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights. All of the outstanding shares of capital stock of the Company is as set forth in the Prospectuses under the caption "Capitalization." The authorized capital stock of the Company conforms in all material respects as to issue and sell legal matters to the description thereof contained in the Prospectuses under the caption "Description of Capital Stock."
4. All the shares of capital stock of the Company outstanding prior to the issuance of the Shares as contemplated to be issued and sold by the Company pursuant to the Underwriting Agreement;
b. The Shares Agreements have been duly authorized andand validly issued, and are fully paid and nonassessable.
5. The Underwritten Shares to be issued and sold to the U.S. Underwriters and Managers by the Company under the U.S. Underwriting Agreement and the International Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriter U.S. Underwriters and Managers against payment therefor in accordance with the terms of the U.S. Underwriting Agreement and the International Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any (A) preemptive rights or (B) to the best knowledge of such counsel after reasonable inquiry, similar rights that entitle or will entitle any person to acquire any shares of Class A Common Stock upon the issuance thereof by the Company.
6. The Adelphia New Shares (as defined in the Prospectuses) have been duly authorized and will conform when issued and delivered to the description thereof Parent against payment therefor in accordance with the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences terms of the Shares, and Adelphia Share Purchase Agreement or the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h)Adelphia Note Contribution Agreement, as the case may be; , will be validly issued, fully paid and nonassessable and free of (A) preemptive rights or (B) to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases similar rights that entitle or other instruments that are required will entitle any person to be described acquire any shares of Class A Common Stock upon the issuance thereof by the Company.
7. The Additional MCI Warrants (as defined in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (AProspectuses) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof duly authorized and, when executed and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust delivered pursuant to the terms of the Agreements Warrant Agreement (the "MCI Warrant Agreement"), dated June 13, 1997, between the Company and Instruments;
k. theretoMCImetro Access Transmission Services, each Trust Agreement constitutes the Inc. ("MCI"), will be valid and binding obligation obligations of the Trust Company, enforceable against the Company in accordance with its their terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements enforcement may be limited by Federal or state securities laws, subject as to enforcement to applicable bankruptcy, insolvency, reorganization reorganization, moratorium and other similar laws affecting the enforceability of general applicability relating to or affecting creditors' rights generally and to by general principles of equity principles;(whether arising under a proceeding at law or in equity).
l. 8. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions maximum number of Shares issuable upon exercise of the Declaration Additional MCI Warrants has been duly authorized and By-Laws reserved for issuance by the Company at the time and in the manner required by the MCI Warrant Agreement and, upon (i) due exercise of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) MCI Warrants and (mii) above) in the course delivery of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of Shares upon such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements thereinexercise, in light of the circumstances under which they were madeeach case, not misleading. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements Additional MCI Warrants and Instruments; andthe MCI Warrant Agreement, such Shares will be validly issued, fully paid and nonassessable.
g. The description 9. Upon due issuance of the Adviser Additional MCI Warrants, the Company will have satisfied its obligation to issue "Additional Initial Warrants" (as such term is defined in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances MCI Warrant Agreement) under which they were made, not misleading.Section 2.2
Appears in 1 contract
Samples: International Underwriting Agreement (Hyperion Telecommunications Inc)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the TrustCompany, the Advisor Partnership, the Trust and the UnderwriterUnderwriters. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATESEQUITY INNS, INC. By:____________________________________ : /s/ Xxxxxx X. Silver --------------------------------------- Xxxxxx X. Silver President and Chief Operating Officer EQUITY INNS TRUST By: /s/ Xxxxxx X. Silver --------------------------------------- Xxxxxx X. Silver President and Chief Operating Officer EQUITY INNS PARTNERSHIP, L.P. By: EQUITY INNS TRUST General Partner By: /s/ Xxxxxx X. Silver --------------------------------------- Xxxxxx X. Silver President and Chief Operating Officer Confirmed as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXX. Friedman, Billings, Xxxxxx & Co., Inc. X.X. Xxxxxxx & Sons, Inc. BB&T Capital Markets, a division of Xxxxx Xxxxxxxxxxxx, Inc. Xxxxxx, Xxxxxxxx & Company Incorporated By:______________________ : Friedman, Billings, Xxxxxx & Co., Inc. /s/ Xxxxx X. Xxxxxxxxx ----------------------------------------------------- Xxxxx X. Xxxxxxxxx Senior Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number A-1 EQUITY INNS, INC. NUMBER OF UNDERWRITER SHARES Friedman, Billings, Xxxxxx & Co., Inc. 1,350,000 X.X. Xxxxxxx & Sons, Inc. 660,000 BB&T Capital Markets, a Division of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM & Xxxxxxxxxxxx, Inc. 495,000 Xxxxxx, Xxxxxxxx & Company Incorporated 495,000 Total 3,000,000 SCHEDULE A-2 DIRECT AND INDIRECT SUBSIDIARIES OF OPINION EQUITY INNS, INC. JURISDICTION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the INCORPORATION/ NAME ORGANIZATION OWNERSHIP PERCENTAGE ---- --------------- -------------------- Equity Inns Trust (the "Agreements and InstrumentsTrust")) Maryland 100% owned by Equity Inns, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound Inc. (the "Agreements and InstrumentsREIT") or any other Agreements and Instruments known to such counsel after due inquiryEquity Inns Services, Inc. (ii"Services") violates or will violate any statuteTennessee 100% owned by the REIT Equity Inns TRS Holdings, law or regulation Inc. (assuming compliance with state securities and blue sky laws)"TRS Holdings") Tennessee 100% owned by the Partnership Equity Inns Partnership, L.P. (iiithe "Partnership") violates or will violate any judgmentTennessee Approximately 96.8% owned by the Trust; approximately 3.2% owned by various limited partners Equity Inns Partnership II, injunctionL.P. Tennessee 1% GP interest held by the Trust; 99% LP interest held by the Partnership Equity Inns/West Virginia Partnership, order or decree that is applicable to L.P. Tennessee 1% GP interest held by Services; 99% LP interest held by the Advisor or any of its properties and that is known to such counselPartnership EQI Financing Corporation Tennessee 100% owned by the Trust EQI Financing Partnership I, or (iv) will result in L.P. Tennessee Approximate 1%-GP interest held by EQI Financing Corporation; approximately 99% LP interest held by the creation or imposition of any lien, charge or encumbrance upon any property or assets of Partnership EQI Financing Corporation II Tennessee 100% owned by the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.Trust
Appears in 1 contract
Applicable Law; Counterparts. This Agreement Agreement, and the Terms Agreement, shall be governed by and construed in accordance with the laws of the State of New YorkYork applicable to contracts made and to be performed within the State of New York without giving effect to the choice of laws or conflict of laws principles thereof. This Agreement Agreement, and the Terms Agreement, may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement and the Terms Agreement shall not become effective unless at least one counterpart hereof or thereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the Companies, the Trust, the Advisor The Money Store and the Underwriter. Very truly yours, COLONIAL MUNICIPAL INCOME CLASSNOTES TRUST 1997-I By:: THE YORK BANK AND TRUST COMPANY, as Eligible Lender Trustee By: ____________________________ Name: Title: TRANS-WORLD INSURANCE COMPANY By: ___________________________ Name: Xxxxxx Dear Title: Executive Vice President CLASSNOTES, INC. By: _____________________________ COLONIAL MANAGEMENT ASSOCIATES, Name: Xxxxxx Dear Title: Executive Vice President THE MONEY STORE INC. By:_______: _____________________________ Name: Xxxxxx Dear Title: Executive Vice President Confirmed as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXXXXXXXX INC. By:By Name: Title: Exhibit A TRANS-WORLD INSURANCE COMPANY CLASSNOTES, INC. Auction Rate Asset Backed Notes TERMS AGREEMENT Dated ______, 199_ To: TRANS-WORLD INSURANCE COMPANY CLASSNOTES, INC. Re: Underwriting Agreement dated March __, 1997 Issuer: ClassNotes Trust 1997-I Series Designation: Series 1997-1 TERMS OF THE NOTES: Final Original Maturity Principal Interest Price to CLASS Date Amount Rate Underwriter(1) ---------
(1) Plus accrued interest, if any, at the applicable rate from ______________________ Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New YorkYork applicable to contracts made and to be performed within the State of New York without regard to principles of conflicts of law. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the TrustCompany, the Advisor Guarantors and the UnderwriterInitial Purchasers. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATES, TENNECO INC. By:____________________________________ : /s/ Karex X. Xxxx Name: Karex X. Xxxx Title: Vice President & Treasurer Confirmed as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXX. XXXNEY INC., and the Initial Purchasers listed on Schedule I hereto By:______________________ Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- : Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 . By: /s/ Stepxxx Xxxxxxxxxx Name: Stepxxx Xxxxxxxxxx Title: Vice President 34 SCHEDULE I INITIAL PURCHASERS' PRINCIPAL AMOUNT OF SECURITIES TO BE PURCHASED NAME AMOUNT ---- ------ Saloxxx Xxxxx Xxxney Inc. $ 225,000,000 Credit Suisse First Boston Corporation 62,500,000 Morgxx Xxxnxxx & Xo. Incorporated 37,500,000 Banc of America Securities LLC 37,500,000 Chase Securities Inc. 37,500,000 Bear, Steaxxx & Xo. Inc. 17,500,000 BNY Capital Markets 10,000,000 Banc One Capital Markets 10,000,000 Commerzbank Capital Markets Corporation 10,000,000 Nesbxxx Xxxnx Xxxurities Inc. 8,750,000 First Union Securities, Inc. 8,750,000 ING Barings 8,750,000 Scotia Capital Markets (USA) Inc. 8,750,000 Societe Generale 8,750,000 TD Securities 8,750,000 --------- TOTAL: $ 500,000,000 =========== AUTOMOTIVE SUBSIDIARIES JURISDICTION OF OWNED BY AND INCORPORATION/ NAME PERCENTAGE OWNED ORGANIZATION ---- ---------------- ------------ Tenneco Automotive Inc. Tenneco Inc./100% Delaware Tenneco International Holding Corp. Tenneco Inc./100%(a) Delaware ---------- (a) As of consummation of the Spin-Off Transactions. 36 EXHIBIT A FORM OF OPINION OF ROPES [Form of Registration Rights Agreement] (executed and filed as Exhibit 10.23 to the Registration Statement with which this is filed) 37 EXHIBIT B [Form of Opinion of Jenner & GRAY Block] October __, 1999 SALOXXX XXXXX XXXNEY INC., and the other Initial Purchasers listed on Schedule I hereto c/o Saloxxx Xxxxx Xxxnxx Xxx. 388 Xxxxxxxxx Xxxxxx Xxx Xxxx, XX 00000 Xxdies and Gentlemen: We have acted as special counsel to Tenneco Inc., a Delaware corporation (the "Company"), in connection with the execution, delivery and performance by the Company of the Purchase Agreement among Saloxxx Xxxxx Xxxney Inc., the other Initial Purchasers and the Company dated October 8, 1999 (the "Purchase Agreement"), pursuant to which the Initial Purchasers are purchasing an aggregate principal amount of $500 million 115/8% Senior Subordinated Notes due 2009 (the "Notes"), to be issued pursuant to an indenture dated as of October __, 1999 (the "Indenture") between the Company and The Underwriter shall Bank of New York, as Trustee. This opinion is being delivered pursuant to Section 7(e) of the Purchase Agreement. Initially capitalized terms not defined herein have received the definitions set forth in the Purchase Agreement. For purposes of our opinion, we have examined the following documents (the "Documents"):
(a) The Preliminary Offering Memorandum dated September 22, 1999 (the "Preliminary Offering Memorandum") relating to the Notes;
(b) The final Offering Memorandum dated October 8, 1999 (the "Offering Memorandum") relating to the Notes;
(c) The Purchase Agreement;
(d) The Indenture;
(e) The form of the Notes; and
(f) The Registration Rights Agreement dated October __, 1999 (the "Registration Rights Agreement"). In addition, we have examined originals or copies of certificates and the documents delivered in connection with the sale of the Notes on the Closing Date an opinion date hereof. We have also examined certified copies of Ropes & Grayresolutions of the Board of Directors and/or committees of the Board of Directors of the Company authorizing the Documents and other matters. In addition, counsel we have made inquiries of officers and employees of the Company and we have examined originals (or copies certified or otherwise identified to our satisfaction) of such instruments, certificates and documents and we have reviewed such questions of law, as we have deemed necessary or appropriate for the Trustpurpose of the opinion rendered below. As to any fact material to our opinion, dated we have (with your permission and without any investigation or independent confirmation) assumed the Closing Date accuracy of such instruments, certificates and addressed documents with respect to the Underwriterfacts stated therein. In rendering the opinion that follows, in form and substance satisfactory we have assumed (i) the genuineness of all signatures, (ii) the authenticity of all documents submitted to us as originals, (iii) the conformity to the Underwriter original documents of all documents submitted to us as copies, (iv) that all documents which must be executed and delivered by parties other than the Company to be effective have been duly authorized, executed and delivered by such other parties and (v) that the Notes have been fully paid for. Whenever our opinion with respect to the effect existence or absence of facts is indicated to be based on our knowledge, we are referring to the actual knowledge of Jenner & Block attorneys who have given substantive attention to matters concerning the Company during the course of our representation of the Company, which knowledge has been obtained by such attorneys in their capacity as such. Notwithstanding the foregoing, for purposes of our opinion in subparagraph 9(ii), knowledge shall mean the actual knowledge of Jenner & Block attorneys who have devoted a significant amount of time to the Spin-Off Transactions, which knowledge has been obtained by such attorneys in their capacity as such. Except as expressly set forth herein, we have not undertaken any independent investigation to determine the existence or absence of such facts and no inference as to our knowledge concerning such facts should be drawn from the fact that such representation has been undertaken by us. Based on the foregoing and subject to such other or further exceptions and limitations as may be set forth below, it is our opinion that:
a. The Trust 1. Each of the Company, Tenneco Automotive Inc., a Delaware corporation ("TA"), andTenneco International Holding Corp., a Delaware corporation ("TIHC"), is a business trust duly organized and validly existing and in good standing under the laws of the Commonwealth its jurisdiction of Massachusetts incorporation with full requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Offering Memorandum, and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to register or qualify would not reasonably be expected to have a Material Adverse Effect.
2. The Company has the requisite corporate power and authority to execute, deliver and perform its obligations under the Purchase Agreement, the Indenture and the Prospectus Registration Rights Agreement; the execution and to issue delivery of, and sell the Shares as contemplated performance by the Underwriting Company of its obligations under, each of the Purchase Agreement;, the Indenture and the Registration Rights Agreement has been duly and validly authorized by the Company, and each of the Purchase Agreement, the Indenture and the Registration Rights Agreement has been duly executed and delivered by the Company. The Purchase Agreement, the Indenture and Registration Rights Agreement (assuming due authorization and execution by each party thereto other than the Company, to the extent a party thereto) each constitute a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms.
b. 3. The Shares Notes have been duly authorized by the Company and, when issued authenticated by the Trustee in accordance with the Indenture and delivered to the Underwriter Initial Purchasers against payment therefor in accordance with the terms of the Underwriting Purchase Agreement, will be have been validly issuedissued and delivered, fully paid and nonassessable and free of any preemptive or similar rights and will conform constitute valid and binding obligations of the Company entitled to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences benefits of the SharesIndenture and enforceable in accordance with their terms.
4. None of (a) the issuance, and the obligation offer, sale or delivery of the Trust to redeem such Shares upon the terms and conditions set forth in the By-LawsSecurities, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements Documents by the TrustCompany, nor TA, or TIHC, to the extent a party thereto, or (c) the consummation by the Trust Company, TA or TIHC of any of the transactions contemplated thereby by the Documents, (Ai) to our knowledge, requires any consent, approval, authorization or other order of of, or registration or filing by the Trust withwith (each, the Commission, the NASD, any national securities exchange, any arbitratora "Consent"), any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as or may be required in connection with the registration under the Securities Act of the Securities in accordance with the Registration Rights Agreement, the qualification of the Indenture under the 1939 Act and except for compliance with state the securities and blue sky lawsor Blue Sky laws of various jurisdictions), (ii) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the Bycertificate of incorporation or by-Laws or other organizational documents laws of the Trust Company, TA or TIHC, except any such conflicts, breaches and defaults that in the aggregate would not reasonably be expected to have a Material Adverse Effect, (Biii) (i) to our knowledge, conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument known to us to which the Trust Company, TA or TIHC is a party or by which it any of them or any of its their respective properties may be bound bound, except as disclosed in the Offering Memorandum including, without limitation, any Consent required in connection with the debt realignment described therein, or any such conflicts, breaches and defaults that is identified, in an officer's certificate of the Trust, as material aggregate would not reasonably be expected to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments")have a Material Adverse Effect, (iiiv) violates or will violate any statute, law law, regulation or regulation (assuming compliance with state securities and blue sky laws), (iii) violates filing or will violate any judgment, injunction, order or decree that is known to us to be applicable to the Trust Company, TA or TIHC, or any of its properties and their respective properties, except any such violations that is known to such counselin the aggregate could not have a Material Adverse Effect (it being understood that we express no opinion in this paragraph 4 regarding compliance with disclosure requirements or prohibitions against fraud or misrepresentation), or (ivv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust Company, TA or TIHC pursuant to the terms of any agreement or instrument known to us to which any of them is a party or by which any of them may be bound or to which any of their properties or assets is subject, other than as disclosed in the Agreements Offering Memorandum.
5. The Initial Purchasers will acquire title to the Notes, free and Instruments;clear of all security interests, mortgages, pledges, liens, encumbrances, claims and equities if the Initial Purchasers acquire such Notes in good faith and without notice of any such security interests, mortgages, pledges, liens, encumbrances, claims or equities.
k. thereto, each Trust Agreement constitutes the 6. The Indenture creates a valid and binding obligation security interest in favor of the Trust enforceable Trustee in accordance with its termsall right, except title and interest of the Company in and to the Collateral (as rights to indemnity and contribution defined in the Underwriting Agreements Indenture).
7. Assuming (i) the representations and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions warranties of the Declaration and By-Laws Company in Section 5 of the Trust Purchase Agreement are true and correct, (ii) the investment policies representations and warranties of the Initial Purchasers in Section 2 of the Purchase Agreement are true and correct, (iii) the Company complies with the covenants set forth in Section 4 of the Purchase Agreement, (iv) the Initial Purchasers comply with the covenants set forth in Section 2 of the Purchase Agreement, (v) the Initial Purchasers comply with the offering and transfer procedures and restrictions described in the Prospectus Offering Memorandum, (vi) the representations and warranties deemed to be made in the Offering Memorandum by purchasers to whom the Initial Purchasers initially resell Securities are true and correct and (vii) purchasers to whom the Initial Purchasers initially resell Securities receive a copy of the Offering Memorandum prior to such sale, the purchase and sale of the Securities pursuant to the Purchase Agreement (including the Statement Initial Purchasers' offering and sale of Additional Informationthe Securities on the terms and in the manner set forth in the Offering Memorandum and Section 2 of the Purchase Agreement) do not require registration under the captions "Investment Objectives Securities Act.
8. Assuming the accuracy of the Initial Purchasers' representations and Policies" warranties contained in the Purchase Agreement and "Miscellaneous Investment Practices" comply the compliance by the Initial Purchasers with the requirements agreements contained in the Purchase Agreement, no qualification of the 1940 Act and Indenture under the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement1939 Act, addressed to the Underwriteras now in effect, dated the Closing Date, to the effect that such counsel has acted for the Trust is required in connection with the preparation offer and sale of the Registration Statement, and based on Securities to the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement Initial Purchasers or the Prospectus (other than as set forth in (f), (g) and (m) above) initial resale of the Securities by the Initial Purchasers to Eligible Purchasers solely in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as manner contemplated by the Prospectus;Purchase Agreement.
d. 9. To our knowledge, (i) none of the best of such counsel's knowledge after reasonable inquiryCompany, there are no legal TA or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties TIHC is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, (ii) none of the Adviser Company, TA or TIHC is in violation of any law, ordinance, administrative or governmental rule or regulation known to us to be applicable to it, decree of any court or governmental agency or body known to us as having jurisdiction over the Company and (Biii) (i) conflicts none of the Company, TA or will conflict with TIHC is in default in the performance of any obligation, agreement or constitutes condition contained in any bond, debenture, note or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument evidence of indebtedness known to us to which any of the Trust Company, TA or TIHC is a party or by which it any of their respective properties may be bound, except as disclosed in the Offering Memorandum or where any such default or defaults in the aggregate would not reasonably be expected to have a Material Adverse Effect.
10. To our knowledge, (i) there are no legal governmental proceedings involving or affecting any of the Company, TA or TIHC, or any of its their respective properties may or assets, which would be bound (required to be described in a prospectus pursuant to the "Agreements Securities Act that are not described in the Offering Memorandum, and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates there are no material contracts or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable other documents which would be required to the Advisor or any of its properties and that is known to such counsel, or (iv) will result be described in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor a prospectus pursuant to the terms Securities Act that are not described in the Offering Memorandum.
11. The statements in the Offering Memorandum under the heading "Description of the Agreements and Instruments; and
g. The description Notes," insofar as such statements purport to summarize certain provisions of the Adviser Notes, the Guarantees, the Registration Rights Agreement and the Indenture, are correct in all material respects and provide a fair summary of the provisions of such agreements and instruments.
12. The statements in the Registration Statement Offering Memorandum under the heading "Risk Factors -- Risks Relating to the Spin-Off," "Business -- Legal and Environmental Proceedings", and "United States Federal Tax Consequences" are correct in all material respects and fairly summarize the legal matters and material tax consequences, as the case may be, described therein.
13. The Company is not, nor immediately after the sale of the Securities to be sold under the Purchase Agreement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light application of the circumstances proceeds from such sale (as described in the Offering Memorandum under which they were madethe caption "Use of Proceeds") will it be an "investment company" as such term is defined in the Investment Company Act of 1940, not misleadingas amended.
Appears in 1 contract
Samples: Purchase Agreement (TMC Texas Inc)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New YorkFlorida without reference to choice of law principles thereunder. This Agreement may be signed in various counterparts counterparts, which together shall constitute one and the same instrument. If signed in counterparts, this This Agreement shall not become be effective unless when, but only when, at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End The Company and the Underwriters each hereby irrevocably waive any right they may have to a trial by jury in respect to any claim based upon or arising out of Text] 22 this Agreement or the transactions contemplated hereby. Please confirm that the foregoing correctly sets forth the agreement among the Trust, the Advisor Company and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATES, INC. By:____________________________________ Confirmed CARDINAL FINANCIAL CORPORATION Name: Title: CONFIRMED AND AGREED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. SALOXXX XXXXXXX XXXXX XXXNXX XXX& ASSOCIATES, INC. By:______________________ Managing Director 23 : Authorized Representative XXXX XXXXX XXXX XXXXXX, INCORPORATED By: Authorized Representative 25 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number Xxxxxxx Xxxxx & Associates, Inc. Xxxx Xxxxx Xxxx Xxxxxx, Incorporated Cardinal Bank Cardinal Wealth Services, Inc. Xxxxxx Xxxxx Mortgage, LLC Cardinal Statutory Trust I [Excel Title Corp.] [Excel Title of Shares Maryland] [CNB Insurance, Inc.] [Cardinal Merger Corp.] [CNB Mortgage LLC] , 2005 CARDINAL FINANCIAL CORPORATION 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000 XxXxxx, Virginia 22102 XXXXXXX XXXXX & ASSOCIATES, INC. XXXX XXXXX XXXX XXXXXX, INCORPORATED As Representatives of Municipal Underwriter Preferred ----------- --------- Saloxxx the Several Underwriters c/o Raymond Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & GrayAssociates, counsel for the TrustInc. 000 Xxxxxxxx Xxxxxxx Xx. Xxxxxxxxxx, dated the Closing Date XX 00000 Ladies and addressed Gentlemen: This letter is delivered to you pursuant to the UnderwriterUnderwriting Agreement (the "Underwriting Agreement") to be entered into by the Company, in form as issuer, and substance satisfactory Xxxxxxx Xxxxx & Associates, Inc. and Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, the representatives (the "Representatives") of certain underwriters (the "Underwriters") to be named therein. Upon the terms and subject to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms conditions of the Underwriting Agreement, will be validly issuedthe Underwriters intend to effect a public offering of Common Stock, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights$1.00 par value, interests, powers and preferences of the Company (the "Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h"), as described in and contemplated by the case registration statement of the Company on Form S-1, File No. 333-123511 (as the same may be hereafter amended, the "Registration Statement"), as filed with the Securities and Exchange Commission on March 23, 2005 (the "Offering"). The undersigned recognizes that it is in the best financial interests of the undersigned, as an officer or director, or an owner of stock, options, warrants or other securities of the Company (the "Company Securities"), that the Company complete the proposed Offering. The undersigned further recognizes that the Company Securities held by the undersigned are, or may be; , subject to certain restrictions on transferability, including those imposed by United States federal securities laws. Notwithstanding these restrictions, the undersigned has agreed to enter into this letter agreement to further assure the Underwriters that the Company Securities of the undersigned, now held or hereafter acquired, will not enter the public market at a time that might impair the underwriting effort. Therefore, as an inducement to the best knowledge Underwriters to execute the Underwriting Agreement, the undersigned hereby acknowledges and agrees that the undersigned will not (i) directly or indirectly, offer, sell, contract to sell, pledge, grant any option to purchase or otherwise dispose of such counsel(collectively, no stop order suspending its effectiveness a "Disposition") any Company Securities, or order pursuant any securities convertible into or exercisable or exchangeable for, or any rights to Section 8(e) purchase or otherwise acquire, any Company Securities held or owned of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending record or threatened beneficially by the Commission;
e. The Registration Statement and undersigned on or acquired by the Prospectus comply as to form in all material respects with undersigned after the provisions of the 1933 Actdate hereof, (collectively, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and Lock-Up Shares"Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to for a period commencing on the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, ending 90 days after the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation effective date of the Registration Statement, inclusive (the "Lock-Up Period"), without the prior written consent of Xxxxxxx Xxxxx & Associates, Inc. and based on Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, or (ii) exercise or seek to exercise or effectuate in any manner any rights of any nature that the foregoingundersigned has or may have hereafter to require the Company to register under the Act the undersigned's sale, while such counsel has not themselves independently verified transfer or other disposition of any of the accuracy Lock-Up Shares or completeness other securities of the Company held by the undersigned, or to otherwise verified and is not passing upon and assumes no responsibility for participate as a selling securityholder in any manner in any registration effected by the Company under the Act, including under the Registration Statement Statement, during the Lock-Up Period. The foregoing restrictions are expressly agreed to preclude the undersigned from engaging in any hedging, collar (whether or not for any consideration) or other transaction that is designed to or reasonably expected to lead or result in a Disposition of Lock-Up Shares during the Prospectus Lock-Up Period, even if such Lock-Up Shares would be disposed of by someone other than such holder. Such prohibited hedging or other transactions would include any short sale or any purchase, sale or grant of any right (including any put or call option or reversal or cancellation thereof) with respect to any Lock-Up Shares or with respect to any security (other than as set forth in a broad-based market basket or index) that includes, relates to or derives any significant part of its value from Lock-Up Shares. Notwithstanding the agreement not to make any Disposition during the Lock-Up Period, you have agreed that the foregoing restrictions shall not apply to:
(f), (g1) and (m) above) the Company Securities being offered in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described prospectus included in the Registration Statement and the ProspectusStatement;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions (2) any grant or exercise of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor options pursuant to the Company's stock option plans, or the surrender of Company Securities to the Company as consideration paid to exercise any or all of the undersigned's options to purchase Company Securities granted by the Company; or
(3) any Company Securities transferred by the undersigned pursuant to a bona fide gift, provided that the donee agrees to be bound by the terms of this Lock-up Agreement unless otherwise agreed to by the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingRepresentatives.
Appears in 1 contract
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the TrustFund, the Advisor Adviser, the Sub-Adviser and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL NEUBERGER BERMAN REALTY INCOME TRUST FUND XXX. By:____________________________________ COLONIAL Title: NEUBERGER BERMAN MANAGEMENT ASSOCIATES, INC. By:____________________________________ Confirmed as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXX. Title: NEUBERGER BERMAN, LLC By:___________________________________ Managing Director 23 Title: Confirmed as of the date first above written on behalf of themselves and the other several Under- writers named in Schedule I hereto. AS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS A.G. EDWARDS & SONS, INC. Xx:___________________________________ Title: SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Underwriters Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 ------------ ---------------- A.G. Edwards & Sons, Inc. [ ] Total [ ] ===== === 47 EXHIBIT A FORM OF OPINION OF ROPES KIRKPATRICK & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & GrayLOCKHART OPINION
1. Xxx Xxxx is x xxxxxxation duly incorporated, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing and in good standing under the laws of the Commonwealth State of Massachusetts with full Maryland and is qualified to do business as a foreign corporation in the State of New York, which such counsel has been advised by an officer of the Fund is the only state in which the Fund maintains an office for the conduct of its business.
2. The Fund has the corporate power and authority to own, lease and operate to: (i) own its properties and to conduct its business as described in the Registration Statement and the Prospectus; and (ii) execute, deliver, and perform its obligations under the Underwriting Agreement and the Fund Agreements.
3. To such counsel's knowledge, the Fund does not have any subsidiaries.
4. The Shares, conform in all material respects as to all statements as to legal matters relating thereto contained in the Prospectus. No person is entitled to any preemptive or other similar rights with respect to the Common Shares or the issuance of the Shares.
5. The number of authorized Common Shares and Shares is as set forth in the Prospectus under the caption "The Fund." All Common Shares and Preferred Shares that to issue such counsel's knowledge have been issued and sell are outstanding prior to the Shares as contemplated issuance of the Shares: (i) have been duly authorized and validly issued and are fully paid and non-assessable; and (ii) have been offered and sold by the Underwriting Agreement;Fund in compliance with applicable law.
b. 6. The Shares have been duly authorized for issuance and sale to the Underwriters pursuant to the Underwriting Agreement and, when issued and delivered by the Fund pursuant to the Underwriter Underwriting Agreement against payment therefor of the consideration set forth in accordance with the terms of the Underwriting Agreement, will be validly issued, issued and fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the Bynon-Laws, are legal, valid, binding and enforceable under Massachusetts law;assessable.
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. 7. The Registration Statement is Statement, including any Rule 462(b) Registration Statement, has become effective under the 1933 Act and the 1940 Act; , any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations 497(c) or Rule 497(h) has been made in the manner and within the time periods period required by Rule 497(b) or (h)497, as the case may be; and to the best knowledge of such counsel's knowledge, no stop order suspending its the effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the any Rule 462(b) Registration Statement has been issued, or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by proceedings therefor threatened, under the 1933 Act, the 1940 Act or the Rules and Regulations;.
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. 8. The Trust Fund is duly registered with the Commission under the 1940 Act as a closed-end non-diversified management investment company;.
m. The provisions of the Declaration 9. Other than with respect to financial statements and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the related notes and schedules theretoand any other financial, accounting and statistical information that is included or incorporated by reference in, or other financial data contained or referred to thereinomitted from, the following documents, as to which such counsel need express no belief)opinion, the Registration Statement, including any Rule 462(b) Registration Statement and any Rule 430A Information, the Prospectus and any amendment or supplement thereto through the date hereof complied as to form in all material respects with the requirements of its effective datethe 1933 Act, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the 1940 Act and the Rules and Regulations thereunder.
10. Insofar as the statements therein not misleading or that in the Prospectus under the captions "Description of New Preferred Shares," "Description of Common Shares" and "Tax Matters" and in the Registration Statement under Item 29 (except for Indemnification) constitute summaries of legal matters, provisions of the financial statements, including the notes and schedules thereto, Fund's charter or other financial data contained bylaws or legal proceedings or legal conclusions referred to therein, as those statements fairly present the information called for with respect to which such counsel need express no belief) contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements thereinthose legal matters, in light of the circumstances under which they were made, not misleading. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser proceedings or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingconclusions.
Appears in 1 contract
Samples: Underwriting Agreement (Neuberger Berman Realty Income Fund Inc)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement as of the date set forth above among the TrustFund, the Advisor Adviser, the Sub-Adviser and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST CLAYMORE/XXXXXXX JAMES SB-1 EQUITY FUND By:____________________________________ COLONIAL MANAGEMENT : --------------- Title: CLAYMORE ADVISORS, LLC By: --------------- Title: XXXXXXX XXXXX & ASSOCIATES, INC. By:____________________________________ : --------------- Title: 39 Confirmed as of the date first above mentionedwritten on behalf of themselves and the other several Under- writers named in Schedule I hereto. SALOXXX AS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS By: XXXXXXX XXXXX XXXNXX XXX& ASSOCIATES, INC. By:______________________ Managing : ----------------------------- Title: Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES SKADDEN, ARPS, SLATE, XXXXXXX & GRAY XXXX LLP FUND OPINION
1. The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust Fund is a business trust duly organized and validly existing in good standing and has a legal existence as a statutory trust under the laws of Delaware Statutory Trust Act.
2. The Fund has the Commonwealth of Massachusetts with full necessary power and authority under the Delaware Statutory Trust Act as a statutory trust to ownexecute, lease deliver and operate perform all of its properties and to conduct its business as described in obligations under the Registration Statement Underwriting Agreement and the Prospectus Fund Agreements specifically identified in such opinion )the "Transaction Documents"). The execution and to issue and sell the Shares as contemplated delivery by the Fund of the Underwriting Agreement;
b. The Shares Agreement and the Transaction Documents and the consummation by the Fund of the transactions contemplated thereby have been duly authorized and, when issued by all requisite action on the part of the Fund under the Delaware Statutory Trust Act. Each of the Underwriting Agreement and the Transaction Documents has been duly executed and delivered to by the Underwriter Fund under the Applicable Laws of the State of Delaware.
3. Each of the Transaction Documents (other than the Advisory Agreement and the Sub-Advisory Agreement) constitutes the valid and binding obligation of the Fund enforceable against payment therefor the Fund in accordance with its terms under the Applicable Laws of the State of New York. Each of the Advisory Agreement and the Sub-Advisory Agreement constitutes the valid and binding obligation of the Fund enforceable against the Fund in accordance with its terms under the Applicable Laws of the State of Delaware.
4. The execution and delivery by the Fund of the Underwriting AgreementAgreement and of each of the Transaction Documents and the performance by the Fund of its obligations under the Underwriting Agreement and each of the Transaction Documents, will be validly issuedeach in accordance with its terms, fully paid and nonassessable and free do not (i) conflict with the Declaration or By-Laws of the Fund, (ii) constitute a violation of, or a default under, any Applicable Contract or (iii) cause the creation of any preemptive security interest or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences lien upon any of the Shares, and the obligation property of the Trust Fund pursuant to redeem such Shares upon any Applicable Contract. Such counsel need not express any opinion, however, as to whether the execution, delivery or performance by the Fund of the Underwriting Agreement or any of the Transaction Documents will constitute a violation of, or a default under, any covenant, restriction or provision with respect to financial ratios or tests or any aspect of the financial condition or results of operations of the Fund.
5. Neither the execution, delivery or performance by the Fund of its obligations under the Underwriting Agreement or the Transaction Documents nor the compliance by the Fund with the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares provisions thereof will contravene any provision of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) Applicable Law or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the 1940 Act Rules and Regulations;Regulations in any material respect.
j. Neither the issuance 6. No Governmental Approval, which has not been obtained or taken and sale of the Sharesis not in full force and effect, is required to authorize, or is required in connection with, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements Transaction Documents. 42
7. Neither the execution, delivery or performance by the Trust, Fund of its obligations under the Underwriting Agreement or the Transaction Documents nor the consummation compliance by the Trust of Fund with the transactions contemplated thereby (A) requires terms and provisions thereof will contravene any consent, approval, authorization or other order of or registration or filing by Applicable Order.
8. The Fund is registered with the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust Commission pursuant to the terms Section 8 of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a diversified, closed-end non-diversified management investment company;
m. The provisions of ; and the Declaration and By-Laws of the Trust and the investment policies and restrictions described comply in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply all material respects with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Claymore/Raymond James SB-1 Equity Fund)
Applicable Law; Counterparts. This Agreement Xxxx Xgreement, and the Terms Agreement, shall be governed by and construed in accordance with the laws of the State of New YorkYork applicable to contracts made and to be performed within the State of New York without giving effect to the choice of laws or conflict of laws principles thereof. This Agreement Agreement, and the Terms Agreement, may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement and the Terms Agreement shall not become effective unless at least one counterpart hereof or thereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the Companies, the Trust, the Advisor The Money Store and the UnderwriterUnderwriters. Very truly yours, COLONIAL MUNICIPAL INCOME CLASSNOTES TRUST 1997-I By:: THE YORK BANK AND TRUST COMPANY, as Eligible Lender Trustee By: /s/ Richard H. Bass Name: Xxxxxxx X. Xxss Title: Xxxx Xxxxxxxxt TRANS-WORLD INSURANCE COMPANY By: /s/ Michael Benoff Name: Xxxxxxx Xxxxxf Title: Xxxxxx Xxxx Xresident CLASSNOTES, INC. By: /s/ Michael Benoff Name: Xxxxxxx Xxxxxf Title: Xxxxxx Xxxx Xresident THE MONEY STORE INC. By: /s/ Michael Benoff Name: Xxxxxxx Xxxxff Title: Xxxxxxxxx Xxce President Confirmed as of the date first above mentioned. SALOMON BROTHERS INC By:/s/ John A. Hupalo Name: John A. Hupalo Title: Director FIRST UXXXX XXXXXXX XARKETS CORX. Xx:/x/ Xxseph Parish Name: Joseph Parish Title: Exhibit A TRANS-WORLD INSURANCE COMPANY CLASSNOTES, INC. Auction Rate Asset Backed Notes TERMS AGREEMENT Dated ______, 199_ To: TRANS-WORLD INSURANCE COMPANY CLASSNOTES, INC. Re: Underwriting Agreement dated December __, 1997 Issuer: ClassNotes Trust 1997-I Series Designation: Series 1997-2 TERMS OF THE NOTES: FINAL ORIGINAL MATURITY PRINCIPAL INTEREST PRICE TO CLASS DATE AMOUNT RATE UNDERWRITERS(1) ----- -------- --------- --------- --------------- ---------
(1) Plus accrued interest, if any, at the applicable rate from ____________________________________ COLONIAL MANAGEMENT ASSOCIATES, INC. By:____________________________________ Confirmed as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXX. By:______________________ Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New YorkYork without reference to choice of law principles thereunder. This Agreement may be signed in various counterparts counterparts, which together shall constitute one and the same instrument. If signed in counterparts, this This Agreement shall not become be effective unless when, but only when, at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End The Company, the Selling Stockholders and the Underwriters each hereby irrevocably waive any right they may have to a trial by jury in respect to any claim based upon or arising out of Text] 22 this Agreement or the transactions contemplated hereby. Please confirm that the foregoing correctly sets forth the agreement among the TrustCompany, the Advisor Selling Stockholders and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST AMEDISYS, INC. By:: _____________________________ Xxxxxxx X. Xxxxx Chief Executive Officer The Selling Stockholders Named in Schedule II Hereto, Acting Severally By: _____________________________ Attorney-in-Fact CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. XXXXXXX XXXXX & ASSOCIATES, INC. XXXXXXXXX & COMPANY, INC. XXXX XXXXX XXXX XXXXXX, INCORPORATED By: XXXXXXX XXXXX & ASSOCIATES, INC. By: _______________________________ COLONIAL MANAGEMENT Authorized Representative SCHEDULE I NUMBER OF NAME FIRM SHARES ---- ----------- Xxxxxxx Xxxxx & Associates, Inc. Xxxxxxxxx & Company, Inc. Xxxx Xxxxx Xxxx Xxxxxx, Incorporated TOTAL: SCHEDULE II SCHEDULE OF SELLING STOCKHOLDERS Number of Selling Stockholder Selling Stockholder Shares to be Sold ------------------- ------------------- EXHIBIT A August __, 2004 Amedisys, Inc. 00000 Xxxx Xxxx, Suite 300 Baton Rouge, Louisiana 70816 XXXXXXX XXXXX & ASSOCIATES, INC. By:____________________________________ Confirmed as XXXXXXXXX & COMPANY, INC. XXXX XXXXX XXXX XXXXXX, INCORPORATED As Representatives of the date first above mentionedSeveral Underwriters c/o Raymond Xxxxx & Associates, Inc. 000 Xxxxxxxx Xxxxxxx Xx. SALOXXX XXXXX XXXNXX XXXXxxxxxxxxx, XX 00000 RE: AMEDISYS, INC. By:______________________ Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed (THE "COMPANY") - RESTRICTION ON STOCK SALES Dear Sirs: This letter is delivered to you pursuant to the UnderwriterUnderwriting Agreement (the "Underwriting Agreement") to be entered into by the Company, in form as issuer, and substance satisfactory Xxxxxxx Xxxxx & Associates, Inc., Xxxxxxxxx & Company, Inc. and Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, the representatives (the "Representatives") of certain underwriters (the "Underwriters") to be named therein. Upon the terms and subject to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms conditions of the Underwriting Agreement, will be validly issuedthe Underwriters intend to effect a public offering of Common Stock, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rightspar value $0.001 per share, interests, powers and preferences of the Company (the "Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h"), as described in and contemplated by the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) registration statement of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 ActCompany on Form S-3, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the ByFile No. 333-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust 118352 (the "Agreements and InstrumentsRegistration Statement"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply filed with the requirements of the 1940 Act Securities and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statementExchange Commission on August __, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound 2004 (the "Agreements and InstrumentsOffering") ). The undersigned recognizes that it is in the best financial interests of the undersigned, as an officer or any director, or an owner of stock, options, warrants or other Agreements and Instruments known to such counsel after due inquiry, securities of the Company (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky lawsthe "Company Securities"), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and Company complete the proposed Offering. The undersigned further recognizes that is known to such counselthe Company Securities held by the undersigned are, or (iv) will result in may be, subject to certain restrictions on transferability, including those imposed by United States federal securities laws. Notwithstanding these restrictions, the creation or imposition of any lien, charge or encumbrance upon any property or assets undersigned has agreed to enter into this letter agreement to further assure the Underwriters that the Company Securities of the Advisor pursuant to undersigned, now held or hereafter acquired, will not enter the terms of public market at a time that might impair the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingunderwriting effort.
Appears in 1 contract
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the TrustFund, the Advisor Adviser, the Sub-Adviser and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST NUVEEN TAX-ADVANTAGED FLOATING RATE FUND By:____________________________________ COLONIAL MANAGEMENT ASSOCIATES: ---------------------------- Title: NUVEEN ASSET MANAGEMENT, INC. By:____________________________________ : ---------------------------- Title: SPECTRUM ASSET MANAGEMENT, INC. By: ---------------------------- Title: Confirmed as of the date first above mentionedwritten on behalf of themselves and the other several Under- writers named in Schedule I hereto. SALOXXX XXXXX XXXNXX XXXAS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS X.X. XXXXXXX & SONS, INC. By:______________________ Managing Director 23 : --------------------------------- Title: SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Underwriter Number of Shares ----------- ---------------- X.X. Xxxxxxx & Sons, Inc. [ ] -- Wachovia Capital Markets, LLC Nuveen Investments, LLC Deutsche Bank Securities Inc. Advest, Inc. H&R Block Financial Advisors, Inc. Xxxxxx, Xxxxx Xxxxx, Incorporated. KeyBanc Capital Markets, a division of Municipal Underwriter Preferred ----------- --------- Saloxxx McDonald Investments, Inc. Xxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 Xxxx Xxxxxx, Incorporated. J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. Xxxxxxxxxxx & Co. Inc. RBC Capital Markets Corporation. Xxxxxx, Xxxxxxxx & Company, Incorporated. SunTrust Capital Markets, Inc. Wedbush Xxxxxx Securities Inc. Xxxxx Fargo Securities, LLC Total [ ] -- EXHIBIT A FORM OF OPINION OF ROPES Form of Xxxx Xxxx & GRAY Xxxxx LLC Opinion
i. The Underwriter shall have received on Registration Statement and all post-effective amendments, if any, are effective under the Closing Date an opinion of Ropes & GrayAct and, counsel for the Trust, dated the Closing Date and addressed to the Underwriterbest of our knowledge, in form no stop order with respect thereto has been issued and substance satisfactory no proceeding for that purpose has been instituted or is threatened by the Commission. Any filing of the Prospectus or any supplements thereto required under Rule 497 under the Act prior to the Underwriter date hereof have been made in accordance with such rule.
ii. The Fund has been duly formed and to the effect that:
a. The Trust is validly existing as a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts Massachusetts, with full business trust power and authority to ownconduct all the activities conducted by it, to own or lease and operate its properties all assets owned (or to be owned) or leased (or to be leased) by it and to conduct its business business, all 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, either alone or in the aggregate, would not have a material adverse effect on the Fund, and, to the best of our knowledge, the Fund 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 Prospectus, except where the failure to obtain such licenses, permits, consents, orders, approvals and other authorizations, either alone or in the aggregate, would not have a material adverse effect on the Fund.
iii. The number of authorized, issued and outstanding shares of Common Shares of the Fund is as set forth in the Registration Statement and the Prospectus under the caption Description of Shares--Common Shares" and in the statement of additional information under the caption "Financial Statements--Statements of Assets and Liabilities as of [ ], 2005." The Common -- Shares of the Fund conform in all material respects to issue and sell the description of them in the Prospectus under the caption "Description of Shares as contemplated by --Common Shares." All the Underwriting Agreement;
b. The outstanding Common Shares have been duly authorized andand are validly issued, fully paid and (except as described in the Prospectus under "Certain Provisions in the Declaration of Trust") nonassessable. The Shares to be issued and delivered to and paid for by the Underwriters in accordance with the Underwriting Agreement against payment therefor as provided by the Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, Underwriters as so provided will have been validly issued and will be validly issued, fully paid and nonassessable and free (except as described in the Prospectus under "Certain Provisions in the Declaration of Trust") nonassessable. No person is entitled to any preemptive or other similar rights and will conform with respect to the description thereof in Shares under the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements Declaration of Massachusetts law; and the relative rights, interests, powers and preferences Trust or by-laws of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable Fund or under Massachusetts law;law or, to counsel's knowledge, otherwise.
c. iv. The Shares conform in all material respects Fund is duly registered with the statements concerning them contained in Commission under the Prospectus1940 Act as a diversified, closed-end management investment company and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective all action under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; , necessary to make the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) public offering and consummate the sale of the 1940 Act relating to Shares as provided in the Trust Underwriting Agreement has been issued and no proceeding for any such purpose is pending or threatened taken by the Commission;Fund.
e. v. The Registration Statement Fund has full business trust power to enter into each of the Underwriting Agreement, the Investment Management Agreement, the Custody Agreement, the Transfer Agency Agreement and the Prospectus comply Expense Reimbursement Agreement, (the Investment Management Agreement, the Custody Agreement, the Transfer Agency Agreement and the Expense Reimbursement Agreement are referred to collectively as the "Fund Agreements") and to form perform all of the terms and provisions thereof to be carried out by it and (A) each of the Underwriting Agreement and the Fund Agreements has been duly and validly authorized, executed and delivered by the Fund, (B) each of the Underwriting Agreement and each Fund Agreement complies in all material respects with the all applicable provisions of the 1933 Act, the 1940 Act and the Rules Advisers Act, as the case may be, and Regulations (C) assuming due authorization, execution and delivery by the other parties thereto and that performance of the Fund Agreements by such other parties will not violate law, agreements to which such other parties or their properties are subject or orders applicable to such other parties, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable against the Fund 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) 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 Underwriting Agreement or the Fund Agreements, (B) the issue and sale by the Fund of the Shares as contemplated by the Underwriting Agreement and (C) the performance by the Fund of its obligations under the Underwriting Agreement and the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Underwriting Agreement and 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 any material agreement or instrument to which the Fund is a party or by which the Fund is bound that is filed as an exhibit to the Registration Statement, or any law, rule or regulation which in our experience is normally applicable to transactions of the type contemplated by the Underwriting Agreement, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, specifically naming the Fund and known to us, except that we express no opinion need be expressed as to the financial statements securities or other financial data contained therein);
f. The statements made "blue sky" laws applicable in connection with the purchase and distribution of the Shares by the Underwriters pursuant to the Underwriting Agreement and except that, in the Prospectus (including published opinion of the bStatement of Additional Information) under Commission, the captions "The Auction" indemnification provisions in the Underwriting Agreement and "Description of Municipal Preferred"the Fund Agreements, insofar as they purport relate to summarize indemnification for liabilities arising under the provisions 1933 Act, are against public policy as expressed in the 1933 Act and therefore unenforceable.
vii. No material consent, approval, authorization or order of any court (to counsel's knowledge) 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 Bylaws transactions to be performed by the Fund or other documents the performance by the Fund of all the terms and provisions to be performed by or agreements specifically referred to thereinon behalf of it in each case as contemplated in the Underwriting Agreement and the Fund Agreements, constitute accurate summaries except such as (A) have been obtained under the federal securities laws and (B) may be required by the NYSE or under state securities or "blue sky" laws in connection with the purchase and distribution of the terms Shares by the Underwriters pursuant to the Underwriting Agreement.
viii. The Shares have been approved for listing on the NYSE, subject to official notice of any such documents;
g. The statements made in issuance, and the Prospectus (including the Fund's Registration Statement of Additional Information) on Form 8-A under the captions "Tax Matters"1934 Act is effective.
ix. Other than as described in or contemplated by the Prospectus, insofar as they constitute matters to the best of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction)our knowledge, there are no legal or governmental proceedings pending or threatened against the TrustFund.
x. The Fund does not require any tax or other rulings to enable it to qualify as a regulated investment company under Subchapter M of the Code.
xi. The section in the Prospectus entitled "Taxes" and the section in the Statement of Additional Information entitled "Taxes", to the extent they describe or summarize tax laws, doctrines or practices in the United States, legal matters, agreements, documents or proceedings discussed therein, present an accurate description or fair summary thereof as of the date of this opinion.
xii. The Registration Statement, at the time it became effective, and the Prospectus, as of the date thereof (in each case except for the financial statements and schedules including the notes and schedules thereto, and other financial, statistical or accounting data included therein or omitted therefrom, as to which we express no view), complied as to form in all material respects with the Trust requirements of the Act and the 1940 Act. While we have not checked the accuracy and completeness of or any of its properties is subjectotherwise verified, that and are required to be described not passing upon and assume no responsibility for the accuracy or completeness of, the statements contained in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiryProspectus, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit except to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as extent set forth in paragraph (f), (g) and (mxi) above) , in the course of their our review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and the Prospectus with certain officers and employees of the Trust Fund and its the Fund's independent accountantsregistered public accounting firm, no facts have come to the our attention of such counsel which would lead them that cause us to believe that the Registration Statement Statement, at the time it became effective (excluding but after giving effect to any changes incorporated pursuant to Rule 430A under the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no beliefAct), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (except that we express no view with respect to the financial statements, including notes and schedules thereto, or any other financial, statistical or accounting data included therein), or that the Prospectus, as of the date it was filed with the Commission pursuant to Rule 497 under the Act and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading (except that we express no view with respect to the financial statements, including notes and schedules thereto, or any other financial, statistical or accounting data included therein). EXHIBIT B Form of Nuveen Asset Management, Inc.'s Internal Counsel Opinion
i. The Adviser has been duly formed and is validly existing as a corporation under the laws of its jurisdiction of incorporation with full power and authority 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 to enter into and perform its obligations under the Underwriting Agreement and the Investment Management Agreement.
ii. The Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting as investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
iii. The Adviser has full power and authority to enter into each of the Underwriting Agreement, the Investment Management Agreement and the Expense Reimbursement Agreement (the Investment Management Agreement and the Expense Reimbursement Agreement are referred to collectively as the "Adviser Agreements") and to carry out all the terms and provisions thereof to be carried out by it, and each such agreement has been duly and validly authorized, executed and delivered by the Adviser; each of the Underwriting Agreement and each Adviser Agreement complies in all material respects with all provisions of the 1940 Act and the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto and that performance of each Adviser Agreement by such other parties will not violate law, agreements to which such other parties or their properties are subject or orders applicable to such other parties, each Adviser Agreement constitutes a legal, valid and binding obligation of the Adviser, enforceable against the Adviser 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) except as rights to indemnity thereunder may be limited by federal or state securities laws.
iv. Neither (A) the execution and delivery by the Adviser of the Underwriting Agreement or any Adviser Agreement nor (B) the consummation by the Adviser of the transactions contemplated by, or the performance of its obligations under the Underwriting Agreement or any Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the charter or by-laws of the Adviser or any agreement or instrument to which the Adviser is a party or by which the Adviser is bound, or any federal law, rule or regulation, any provision of the Delaware General Corporation Law or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, specifically naming the Adviser and known to counsel, except in each case for such conflicts or breaches which do not, either alone or in the aggregate, have a material adverse effect on the Adviser's ability to perform its obligations under the Underwriting Agreement and the Adviser Agreements, and except that, in the published opinion of the Commission, the indemnification provisions in the Underwriting Agreement and the Adviser Agreements, insofar as they relate to indemnification for liabilities arising under the 1933 Act, are against public policy as expressed in the 1933 Act and therefore unenforceable.
v. No consent, approval, authorization or order of any court (to my knowledge), 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 Adviser of its obligations under, the Underwriting Agreement and any Adviser Agreement, except (i) such as have been obtained under the federal securities laws and (ii) 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 the Underwriting Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Tax-Advantaged Floating Rate Fund)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New YorkFlorida without reference to choice of law principles thereunder. This Agreement may be signed in various counterparts counterparts, which together shall constitute one and the same instrument. If signed in counterparts, this This Agreement shall not become be effective unless when, but only when, at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End The Company and the Underwriters each hereby irrevocably waive any right they may have to a trial by jury in respect to any claim based upon or arising out of Text] 22 this Agreement or the transactions contemplated hereby. Please confirm that the foregoing correctly sets forth the agreement among the Trust, the Advisor Company and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATES, INC. By:____________________________________ Confirmed CARDINAL FINANCIAL CORPORATION Xxxxxxx X. Xxxxxxxxx President and Chief Executive Officer CONFIRMED as of the date first above mentioned, on behalf of the Representatives and the other several Underwriters named in Schedule I hereto. SALOXXX XXXXXXX XXXXX XXXNXX XXX& ASSOCIATES, INC. By:______________________ Managing Director 23 : Authorized Representative XXXX XXXXX XXXX XXXXXX, INCORPORATED By: Authorized Representative 25 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number Xxxxxxx Xxxxx & Associates, Inc. Xxxx Xxxxx Xxxx Xxxxxx, Incorporated Cardinal Bank, N.A. Cardinal Wealth Services, Inc. December , 2003 CARDINAL FINANCIAL CORPORATION 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000 XxXxxx, Virginia 22102 XXXXXXX XXXXX & ASSOCIATES, INC. XXXX XXXXX XXXX XXXXXX, INCORPORATED As Representatives of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx the Several Underwriters c/o Raymond Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & GrayAssociates, counsel for the TrustInc. 000 Xxxxxxxx Xxxxxxx Xx. Xxxxxxxxxx, dated the Closing Date XX 00000 Ladies and addressed Gentlemen: This letter is delivered to you pursuant to the UnderwriterUnderwriting Agreement (the "Underwriting Agreement") to be entered into by the Company, in form as issuer, and substance satisfactory Xxxxxxx Xxxxx & Associates, Inc. and Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, the representatives (the "Representatives") of certain underwriters (the "Underwriters") to be named therein. Upon the terms and subject to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms conditions of the Underwriting Agreement, will be validly issuedthe Underwriters intend to effect a public offering of Common Stock, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights$1 par value, interests, powers and preferences of the Company (the "Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h"), as described in and contemplated by the case registration statement of the Company on Form S-1, File No. 333- (as the same may be hereafter amended, the "Registration Statement"), as filed with the Securities and Exchange Commission on November , 2003 (the "Offering"). The undersigned recognizes that it is in the best financial interests of the undersigned, as an officer or director, or an owner of stock, options, warrants or other securities of the Company (the "Company Securities"), that the Company complete the proposed Offering. The undersigned further recognizes that the Company Securities held by the undersigned are, or may be; , subject to certain restrictions on transferability, including those imposed by United States federal securities laws. Notwithstanding these restrictions, the undersigned has agreed to enter into this letter agreement to further assure the Underwriters that the Company Securities of the undersigned, now held or hereafter acquired, will not enter the public market at a time that might impair the underwriting effort. Therefore, as an inducement to the best knowledge Underwriters to execute the Underwriting Agreement, the undersigned hereby acknowledges and agrees that the undersigned will not (i) directly or indirectly, offer, sell, contract to sell, pledge, grant any option to purchase or otherwise dispose of such counsel(collectively, no stop order suspending its effectiveness a "Disposition") any Company Securities, or order pursuant any securities convertible into or exercisable or exchangeable for, or any rights to Section 8(e) purchase or otherwise acquire, any Company Securities held or owned of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending record or threatened beneficially by the Commission;
e. The Registration Statement and undersigned on or acquired by the Prospectus comply as to form in all material respects with undersigned after the provisions of the 1933 Actdate hereof, (collectively, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and Lock-Up Shares"Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to for a period commencing on the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, ending 90 days after the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation effective date of the Registration Statement, inclusive (the "Lock-Up Period"), without the prior written consent of Xxxxxxx Xxxxx & Associates, Inc. and based on Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, or (ii) exercise or seek to exercise or effectuate in any manner any rights of any nature that the foregoingundersigned has or may have hereafter to require the Company to register under the Act the undersigned's sale, while such counsel has not themselves independently verified transfer or other disposition of any of the accuracy Lock-Up Shares or completeness other securities of the Company held by the undersigned, or to otherwise verified and is not passing upon and assumes no responsibility for participate as a selling securityholder in any manner in any registration effected by the Company under the Act, including under the Registration Statement Statement, during the Lock-Up Period. The foregoing restrictions are expressly agreed to preclude the undersigned from engaging in any hedging, collar (whether or not for any consideration) or other transaction that is designed to or reasonably expected to lead or result in a Disposition of Lock-Up Shares during the Prospectus Lock-Up Period, even if such Lock-Up Shares would be disposed of by someone other than such holder. Such prohibited hedging or other transactions would include any short sale or any purchase, sale or grant of any right (including any put or call option or reversal or cancellation thereof) with respect to any Lock-Up Shares or with respect to any security (other than as set forth in a broad-based market basket or index) that includes, relates to or derives any significant part of its value from Lock-Up Shares. Notwithstanding the agreement not to make any Disposition during the Lock-Up Period, you have agreed that the foregoing restrictions shall not apply to:
(f), (g1) and (m) above) the Company Securities being offered in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described prospectus included in the Registration Statement and the ProspectusStatement;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions (2) any grant or exercise of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor options pursuant to the Company's stock option plans, or the surrender of Company Securities to the Company as consideration paid to exercise any or all of the undersigned's options to purchase Company Securities granted by the Company; or
(3) any Company Securities transferred by the undersigned pursuant to a bona fide gift, provided that the donee agrees to be bound by the terms of this Lock-up Agreement unless otherwise agreed to by the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingRepresentatives.
Appears in 1 contract
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New YorkYork without reference to choice of law principles thereunder. This Agreement may be signed in various counterparts which together shall constitute one and the same instrument. If signed in counterparts, this This Agreement shall not become be effective unless when, but only when, at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End The Company and the Underwriter each hereby irrevocably waive any right they may have to a trial by jury in respect to any claim based upon or arising out of Text] 22 this Agreement or the transactions contemplated hereby. Please confirm that the foregoing correctly sets forth the agreement among the Trust, the Advisor Company and the Underwriter. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATESHARRIS & HARRIS GROUP, INC. By:____________________________________ Confirmed Charles E. Harris Chairman and Chief Executive Officer CONFIRMED as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXX. Punk, Ziegel & Company By:_____________________________ Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 Name:______________________________ Title: EXHIBIT A FORM OF OPINION OF ROPES Form of Skadden, Arps, Slate, Meagher & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date Flom LLP Opinion
1. Xxx Coxxxxy has been created and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing and has a legal existence under the laws of the Commonwealth State of Massachusetts with full New York.
3. The Company has the power and authority to ownexecute, lease deliver and operate perform all of its properties and to conduct its business as described in obligations under the Registration Statement Underwriting Agreement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement Transaction Documents and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; execution and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of and the Trust Agreements by the Trust, nor Transaction Documents and the consummation by the Trust Company of all of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to duly authorized by all requisite action on the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents part of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate Company Each of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have Transaction Documents has been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingCompany.
Appears in 1 contract
Samples: Underwriting Agreement (Harris & Harris Group Inc /Ny/)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New YorkYork without reference to choice of law principles thereunder. This Agreement may be signed in various counterparts counterparts, which together shall constitute one and the same instrument. If signed in counterparts, this This Agreement shall not become be effective unless when, but only when, at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End The Company and the Underwriters each hereby irrevocably waive any right they may have to a trial by jury in respect to any claim based upon or arising out of Text] 22 this Agreement or the transactions contemplated hereby. Please confirm that the foregoing correctly sets forth the agreement among the Trust, the Advisor Company and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATESAMEDISYS, INC. By:____________________________________ Confirmed : CONFIRMED as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXX, for itself and on behalf of the other several Underwriters named in Schedule I hereto. By:______________________ Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number : XXXXXXX XXXXX & ASSOCIATES, INC. By: Authorized Representative Xxxxxxx Xxxxx & Associates, Inc. Wachovia Capital Markets, LLC UBS Securities LLC CIBC World Markets Corp. X.X. Xxxxxx Securities Inc. October , 2006 Amedisys, Inc. 00000 Xxxx Xxxx, Suite 300 Baton Rouge, Louisiana 70816 XXXXXXX XXXXX & ASSOCIATES, INC. 000 Xxxxxxxx Xxxxxxx Xx. Xxxxxxxxxx, XX 00000 As Representative of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed Several Underwriters Dear Sirs: This letter is delivered to you pursuant to the UnderwriterUnderwriting Agreement (the “Underwriting Agreement”) to be entered into by the Company, in form as issuer, and substance satisfactory Xxxxxxx Xxxxx & Associates, Inc., the representative (the “Representative”) of certain underwriters (the “Underwriters”) to be named therein. Upon the terms and subject to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms conditions of the Underwriting Agreement, will be validly issuedthe Underwriters intend to effect a public offering of Common Stock, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rightspar value $0.001 per share, interests, powers and preferences of the Company (the “Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h”), as described in and contemplated by the case registration statement of the Company on Form S-3, File No. 333- (the “Registration Statement”), as filed with the Securities and Exchange Commission on October , 2006 (the “Offering”). The undersigned recognizes that it is in the best financial interests of the undersigned, as an officer or director, or an owner of stock, options, warrants or other securities of the Company (the “Company Securities”), that the Company complete the proposed Offering. The undersigned further recognizes that the Company Securities held by the undersigned are, or may be; , subject to certain restrictions on transferability, including those imposed by United States federal securities laws. Notwithstanding these restrictions, the undersigned has agreed to enter into this letter agreement to further assure the Underwriters that the Company Securities of the undersigned, now held or hereafter acquired, will not enter the public market at a time that might impair the underwriting effort. Therefore, as an inducement to the best knowledge Underwriters to execute the Underwriting Agreement, the undersigned hereby acknowledges and agrees that the undersigned will not (i) offer, sell, contract to sell, pledge, grant any option to purchase or otherwise dispose of such counsel(collectively, no stop order suspending its effectiveness a “Disposition”) any Company Securities, or order any securities convertible into or exercisable or exchangeable for, or any rights to purchase or otherwise acquire, any Company Securities held by the undersigned or acquired by the undersigned after the date hereof, or that may be deemed to be beneficially owned by the undersigned (collectively, the “Lock-Up Shares”), pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) promulgated under the captions "The Auction" and "Description Securities Act of Municipal Preferred"1933, insofar as they purport to summarize amended (the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects“Act”), and fairly present the information called for with respect thereto by Form N-2 under Securities Exchange Act of 1934, as amended (the 1940 “1934 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction”), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to for a period commencing on the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, ending 90 days after the Declaration, the By-Laws or other organizational documents date of the Trust or (BCompany’s Prospectus first filed pursuant to Rule 424(b) (i) conflicts or will conflict with or constitutes or will constitute a breach ofunder the Act, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust inclusive (the "Agreements and Instruments"“Lock-Up Period”), without the prior written consent of Xxxxxxx Xxxxx & Associates, Inc.1 or (ii) violates exercise or will violate seek to exercise or effectuate in any statutemanner any rights of any nature that the undersigned has or may have hereafter to require the Company to register under the Act the undersigned’s sale, law transfer or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or other disposition of any of its properties and that is known to such counselthe Lock-Up Shares or other securities of the Company held by the undersigned, or (iv) will result to otherwise participate as a selling securityholder in any manner in any registration effected by the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered Company under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (Act, including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on during the Lock-Up Period, notwithstanding the foregoing, while such counsel has not themselves independently verified if (x) during the accuracy last 17 days of the Lock-Up Period, the Company issues a release concerning earnings or completeness material news or a material event relating to the Company occurs; or (y) prior to the expiration of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement Lock-Up Period, the Company announces it will release earnings results during the 16 day period beginning on the last day of the Lock-Up Period; the restrictions imposed in this letter agreement shall continue to apply until the expiration of the 18 day period beginning on the issuance of the earnings release or the Prospectus occurrence of the material news or material event. The foregoing restrictions are expressly agreed to preclude the undersigned from engaging in any hedging, collar (whether or not for any consideration) or other transaction that is designed to or reasonably expected to lead or result in a Disposition of Lock-Up Shares during the Lock-Up Period, even if such Lock-Up Shares would be disposed of by someone other than such holder. Such prohibited hedging or other transactions would include any short sale or any purchase, sale or grant of any right (including any put or call option or reversal or cancellation thereof) with respect to any Lock-Up Shares or with respect to any security (other than as set forth in (f)a broad-based market basket or index) that includes, (g) and (m) above) relates to or derives any significant part of its value from Lock-Up Shares. Notwithstanding the agreement not to make any Disposition during the Lock-Up Period, you have agreed that the foregoing restrictions shall not apply to:
1. the Company Securities being offered in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described prospectus included in the Registration Statement and the Prospectus;Statement; or
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions 2. any grant or exercise of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor options pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingCompany’s stock option plan.
Appears in 1 contract
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the Trust, the Advisor and the Underwriter. Very truly yours, COLONIAL INVESTMENT GRADE MUNICIPAL INCOME TRUST By:____________________________________ : ------------------------------- COLONIAL MANAGEMENT ASSOCIATES, INC. By:____________________________________ : ------------------------------- Confirmed as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXX. By:______________________ : ---------------------------------- Managing Director 23 SCHEDULE I COLONIAL INVESTMENT GRADE MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ......................................... 2,400 ----- Total........................................ 3,600 ----- 24 EXHIBIT A ............................................................ 2,400 FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement Statement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, with the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. The Underwriting Agreement and the Trust Agreements have been duly authorized, executed and delivered by the Trust and each complies with all applicable provisions of the 1940 Act; assuming due authorization, execution and delivery by the other parties thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and
n. The portions of the proxy statement and all related materials distributed to holders of Common Shares of the Trust in connection with the shareholder meeting held on May 20, 1999, as adjourned to ________ __, 1999 (the "Shareholder Meeting"), and in connection with amending the Declaration to permit the issuance of preferred shares (the "Preferred Share Proxy Materials") did not, as of its date or the date of the Shareholder Meeting, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Preferred Share Proxy Materials complied as to form, as of its date and as of the date of the Shareholder Meeting, in all material respects with the provisions of the 1934 Act, the 1940 Act and the Rules and Regulations. Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser Advisor is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser Advisor is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the AdviserAdvisor, or to which the Adviser Advisor or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser Advisor is not in violation of its corporate charter or by-laws, nor is the Adviser Advisor in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser Advisor of the transactions contemplated hereby or thereby (A) requires the Adviser Advisor to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser Advisor or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser Advisor in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Colonial Investment Grade Municipal Trust)
Applicable Law; Counterparts. This Agreement shall will be governed by and construed in accordance with the laws of the State of New YorkYork applicable to agreements made and to be performed entirely in said State. This Agreement may be signed executed in various counterparts any number of counterparts, each of which shall for all purposes be deemed to be an original and all of which shall together constitute but one and the same instrument. If signed in counterparts, No amendment of any provision of this Agreement shall not become be effective unless at least one counterpart hereof shall have been executed it is in writing and delivered on behalf of each party signed by the parties hereto. [End of Text] 22 Please confirm that If the foregoing correctly sets forth the is in accordance with your understanding of our agreement, please sign and return to us a counterpart hereof, whereupon this letter and your acceptance shall represent a binding agreement among the TrustCompany, the Advisor Wachovia and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATESWACHOVIA COMMERCIAL MORTGAGE SECURITIES, INC. By:____________________________________ Confirmed : /s/ Charles L. Culbreth ----------------------------------------- Name: Charles L. Culbreth Title: Manxxxxx Xxxxxxxx WACHOVIA BANK, NATIONAL ASSOCIATION By: /s/ Elizabeth K. Stinson ----------------------------------------- Name: Elizabeth K. Stinson Title: Vixx Xxxxxxxxx The foregoing Agreement is hereby confirmed and accepted as of the date first above mentionedwritten. SALOXXX XXXXX XXXNXX XXXWACHOVIA CAPITAL MARKETS, LLC By: /s/ Elizabeth K. Stinson ----------------------------------------- Name: Elizabeth K. Stinson Title: Vixx Xxxxxxxxx BANC OF AMERICA SECURITIES LLC By: /s/ Stephen L. Hogue ----------------------------------------- Name: Stephen L. Hogue Title: Princixxx CITIGROUP GLOBAL MARKETS INC. By:______________________ : /s/ David Tibbals ----------------------------------------- Name: David Tibbals Title: Managing Director 23 Xxxxxxxx GOLDMAN, SACHS & CO. By: /s/ Xxxxxxx, Xxxxx & Co. ----------------------------------------- Name: Title: EXHIBIT A Computational Materials [Form 8-K filed by the Registrant on February 20, 2004 relating to Computational Materials is hereby incorporated by reference.] EXHIBIT B Term Sheets [Form 8-K filed by the Registrant on February 6, 2004 relating to a collateral and structural Term Sheet is hereby incorporated by reference.] SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trustdated February 12, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that2004:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Wachovia Commercial Mort Pass THR Certs Ser 2004-C10)
Applicable Law; Counterparts. This Agreement shall be governed by and ---------------------------- construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York, without regard to the conflicts of laws principles of any jurisdiction. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among between the Trust, the Advisor Company and the UnderwriterUnderwriters. Very truly yours, COLONIAL MUNICIPAL INCOME GROVE PROPERTY TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATESName: Title: GROVE OPERATING, INC. L.P. By: Grove Property Trust, General Partner By:____________________________________ Name: Title: Confirmed as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXXXXXXXX INC. XXXXXX BROTHERS INC. As Representatives of the Several Underwriters By: XXXXX XXXXXX INC. By:: ___________________________ Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number UNDERWRITERS No. of Common Underwriter Shares Purchased ----------- ---------------- Xxxxx Xxxxxx Inc............................................. Xxxxxx Brothers Inc.......................................... Total..................................................... 3,141,475 ========= 24 SCHEDULE II LIST OF SUBSIDIARIES AND PROPERTIES Apartment Communities Owned by the Operating Partnership Legal Name of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT Partnership Apartment Communities Owned by Subsidiary Partnerships Retail Properties Owned by the Operating Partnership ANNEX A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust Company is a business real estate investment trust duly organized formed and validly existing in good standing under the laws of the Commonwealth State of Massachusetts Maryland, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any nature of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are conduct of its business requires such registration or qualification, except where the failure so to register or qualify could not described as required;
i. To reasonably be expected to have a material adverse effect on the best condition (financial or other), business, properties, net worth or results of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale operations of the SharesCompany and the Subsidiaries, the execution, delivery or performance taken as a whole. Each of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute Subsidiaries is a breach of, limited partnership or a default underlimited liability company duly organized, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly legally existing and in good standing under the laws of The Commonwealth its jurisdiction of Massachusettsorganization, with full corporate power and authority under the laws governing such limited partnerships or limited liability companies and under such entities' respective organizational documents to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus, and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify could not reasonably be expected to have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of the Company and the Subsidiaries taken as a whole. The Company is the sole general partner of the Operating Partnership. Either the Company or the Operating Partnership or a wholly owned subsidiary thereof is the sole general partner of each of the Subsidiary Partnerships. The Company's partnership interests in the Operating Partnership and each Subsidiary Partnership are, to the knowledge of such counsel, owned free and clear of any lien, adverse claim, security interest, equity or other encumbrance, except for such as could not reasonably be expected to have a material adverse effect on the condition (financial or other), business properties, net worth or results of operations of the Company and the Subsidiaries, taken as a whole. The authorized capital stock of the Company is as set forth under the caption "Description of Shares of Beneficial Interest" in the Prospectus; the authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained in such section in the Prospectus;
b. . All the shares of capital stock of the Company outstanding prior to the issuance of the Shares have been duly authorized and validly issued, and are fully paid and nonassessable. The Underwriting Shares and the Concurrent Shares have been duly authorized and, when issued and delivered to the Underwriters against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable and, to the best knowledge of such counsel, free of any rights similar to preemptive rights under the Declaration of Trust or By-laws of the Company or under Maryland law that will entitle any person to acquire any Shares upon the issuance thereof by the Company. To the knowledge of such counsel, the Shares and the Concurrent Shares, when issued and delivered to the Underwriters against payment therefor in accordance with the terms hereof, will be free of any preemptive rights or similar rights. No registration under the Act or the Investment Company Act and no consent, approval, authorization, order, registration or qualification of or with any governmental agency or body (A) was required for the issuance of _______ Common Units of the Operating Partnership on March 14, 1997, or (B) was required for the Company's issuance of 3,333,333 Common Shares on March 14, 1997. The form of certificates for the Shares conforms to the requirements of Maryland law. The Registration Statement and all post-effective amendments, if any, have become effective under the Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before or contemplated by the Commission; and any required filing of the Prospectus pursuant to Rule 424(b) has been made in accordance with Rule 424(b). The Company has the power and authority to enter into this Agreement and to issue, sell and deliver the Management Shares to the Underwriters as provided herein, and this Agreement have has been duly authorized, executed and delivered by the Advisor Company. The Operating Partnership has the power and each complies with all applicable provisions of the Advisers Act authority to enter into this Agreement and the Management this Agreement constitutes the valid has been duly authorized, executed and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited delivered by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. Operating Partnership. To the best knowledge of such counsel's knowledge after reasonable inquiry, there are no legal neither the Company nor any of the Subsidiaries is in violation of its respective organizational documents or governmental proceedings pending or threatened against the Adviserits respective bylaws, or other organizational documents, and, to which the Adviser best knowledge of such counsel, is not in default in the performance of any material obligation, agreement or condition contained in any bond, debenture, note or other evidence of its properties indebtedness that is subject, that are required listed as an exhibit to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of to any Incorporated Document, where such counsel's knowledge after reasonable inquirydefault, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument individually or in breach the aggregate, has had or violation is reasonably likely to have a material adverse effect on the condition (financial or otherwise), business, properties, net worth or results of any judgmentoperations of the Company and the Subsidiaries, decreetaken as a whole, orderexcept as may be disclosed in the Prospectus.Neither the offer, rule sale or regulation delivery of any court or governmental or self-regulatory agency or body;
f. Neither the Shares, the execution, delivery or performance of this Agreement, compliance by the Underwriting Agreement Company with the provisions hereof nor the consummation by the Adviser Company of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation charter or by-lawsbylaws, or other organizational 28 2 documents, of the Adviser Company or (B) (i) conflicts any of the Subsidiaries or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust Company or any of the Subsidiaries is a party or by which it any of them or any of its their respective properties may be is bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable an exhibit to the Advisor Registration Statement or to any Incorporated Document, or will, to the knowledge of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant Company or any of the Subsidiaries, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws), judgment, injunction, order or decree known to such counsel, applicable to the terms Company, the Subsidiaries or any of their respective properties, except for such breaches, defaults or violations that have not had and could not reasonably be expected to have a material adverse effect on the condition (financial or otherwise), business, properties, net worth or results of operations of the Agreements Company and Instruments; and
g. The description the Subsidiaries, taken as a whole. No consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Adviser in Company (except as has been obtained under the Act and the Exchange Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) for the valid issuance and sale of the Shares to the Underwriters as contemplated by this Agreement. The Registration Statement and the Prospectus does and any supplements or amendments thereto (except for the financial statements and the notes thereto and the schedules and other financial and statistical data included therein, as to which such counsel need not contain an untrue statement express any opinion) comply as to form in all material respects with the requirements of a the Act; and the Company's Quarterly Reports on Form 10-Q for the quarters ended June 30, 1997 and September 30, 1997 (except for the financial statements and the notes thereto and the schedules and other financial and statistical data included therein, as to which counsel need not express any opinion) comply as to form in all material fact respects with the Exchange Act and the rules and regulations of the Commission thereunder. To the knowledge of such counsel, (A) other than as described or omit contemplated in the Prospectus (or any supplement thereto), the Registration Statement or any Incorporated Document, there are no legal or governmental proceedings pending or threatened against the Company or any of the Subsidiaries, or to state a material fact which the Company or any of the Subsidiaries, or any of their property, is subject, which are required to be stated therein described in the Registration Statement or necessary Prospectus (or any amendment or supplement thereto) and (B) there are no agreements, contracts, indentures, leases or other instruments, that are required to make be described in the statements thereinRegistration Statement or the Prospectus (or any amendment or supplement thereto) or to be filed as an exhibit to the Registration Statement or any Incorporated Document that are not described or filed as required, in light of as the circumstances under which they were made, not misleadingcase may be.
Appears in 1 contract
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New YorkFlorida without reference to choice of law principles thereunder. This Agreement may be signed in various counterparts counterparts, which together shall constitute one and the same instrument. If signed in counterparts, this This Agreement shall not become be effective unless when, but only when, at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End The Company, the Selling Stockholders and the Underwriters each hereby irrevocably waive any right they may have to a trial by jury in respect to any claim based upon or arising out of Text] 22 this Agreement or the transactions contemplated hereby. Please confirm that the foregoing correctly sets forth the agreement among the TrustCompany, the Advisor Selling Stockholders and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST NEXITY FINANCIAL CORPORATION By:____________________________________ COLONIAL MANAGEMENT ASSOCIATES: Name: Xxxx X. Xxx Title: Chairman and Chief Executive Officer Solely with respect to Sections 5.2, INC. 6.2, 8, 9 and 13 of this Agreement, the Selling Stockholders Named in Schedule II Hereto, Acting Severally By:____________________________________ Confirmed : Attorney-in-Fact CONFIRMED as of the date first above mentioned, on behalf of the Representative and the other several Underwriters named in Schedule I hereto. SALOXXX XXXXXXX XXXXX XXXNXX XXX& ASSOCIATES, INC. By:______________________ Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx : Authorized Representative Xxxxxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes Associates, Inc. Xxxxxxx Xxxxx & GrayAssociates, counsel for the TrustInc. , dated the Closing Date and addressed to the Underwriter2005 NEXITY FINANCIAL CORPORATION 0000 Xxxx Xxxx Xxxxx Xxxxx 000 Xxxxxxxxxx, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws Xxxxxxx 00000 XXXXXXX XXXXX & ASSOCIATES, INC. As Representative of the Commonwealth of Massachusetts with full power and authority to ownSeveral Underwriters c/o Raymond Xxxxx & Associates, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized andInc. 000 Xxxxxxxx Xxxxxxx Xx. Xxxxxxxxxx, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.Xxxxxxx 00000
Appears in 1 contract
Applicable Law; Counterparts. This Agreement shall be governed by and ---------------------------- construed in accordance with the laws of the State of New YorkCalifornia applicable to contracts made and to be performed within the State of California. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among between the Trust, the Advisor Company and the Underwriter. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATESNATIONWIDE HEALTH PROPERTIES, INC. By:____________________________________ : /s/ XXXX X. XXXXXXX ------------------------------ Name: Xxxx X. Xxxxxxx Title: Senior Vice President and Chief Financial Officer Confirmed as of the date first above mentioned. SALOXXX XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX XXXNXX XXX. INCORPORATED By:______________________ Managing Director 23 : /s/ XXXX X. XXXXX ------------------------------------------ Authorized Signatory SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number ---------- Significant Subsidiaries of Shares the Company (as such term is defined in Rule 405 of Municipal Underwriter Preferred ----------- --------- Saloxxx Regulation C under the Act) ------------------------------------------------------------------- National Health Properties Finance Corporation, a Delaware corporation ANNEX A ------- Opinion of O'Melveny & Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY LLP --------------------------------
(i) The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date Company has been duly incorporated and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth State of Massachusetts with full Maryland.
(ii) The Company has corporate power and authority to own, lease and operate own its properties and assets and to conduct carry on its business as described in the Registration Statement and the Prospectus Prospectus.
(iii) To the best of such counsel's knowledge, the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to issue so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and sell its subsidiaries considered as one enterprise.
(iv) Nationwide Health Properties Finance Corporation, a Delaware corporation, has been duly incorporated and is validly existing in good standing under the Shares laws of the jurisdiction of its incorporation with corporate power to conduct its business as contemplated currently conducted and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; and all of the issued and outstanding capital stock of Nationwide Health Properties Finance Corporation has been duly authorized and validly issued, is fully paid and non- assessable and, except for directors' qualifying shares, is owned by the Underwriting Agreement;Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
b. (v) The execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on the part of the Company, and has been duly executed and delivered by the Company.
(vi) The Company has an authorized capitalization as set forth in the Prospectus. All of the issued shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting this Agreement, will be validly issued, fully paid and nonassessable nonassessable, and free of will not be subject to any preemptive or similar rights and will conform rights. The Common Stock conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus; the Certificate evidencing .
(vii) The form of certificates for the Shares complies with all conform to the requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;Maryland General Corporation Law.
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. (viii) The Registration Statement is has been declared effective under the 1933 Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued or threatened by the Commission; and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations 424(b) has been made within the time periods required by in accordance with Rule 497(b424(b).
(ix) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and Statement, on the Prospectus date it became effective, appeared on its face to comply as to form in all material respects with the provisions of requirements as to form for registration statements on Form S-3 under the 1933 Act, the 1940 Act and the Rules related rules and Regulations (regulations in effect at the date of effectiveness, except that no opinion need be expressed as to concerning the financial statements and other financial information contained or incorporated by reference therein or any Statement of Eligibility of any trustee on Form T-1 filed as an exhibit thereto.
(x) Each of the Incorporated Documents (other than the financial statements and other financial data contained included or incorporated by reference therein);, as to which no opinion need be rendered) on the respective dates they were filed, appeared on their face to comply in all material respects with the Exchange Act and the rules and regulations thereunder in effect at the respective dates of their filing.
f. (xi) The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The AuctionDescription of Common Stock" and "Description of Municipal PreferredCertain Federal Income Tax Considerations", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as extent that they constitute matters of law law, summaries of legal matters or documents, or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions are correct in all material respects.
(xii) No order, and fairly present authorization, consent, permit or approval of any governmental authority is required on the information called part of the Company for with respect thereto the consummation of the transactions contemplated by Form N-2 this Agreement, except such as may be required under the 1940 Act or the Exchange Act or state securities or Blue Sky laws.
(xiii) The Company is not an "investment company" within the meaning of the Investment Company Act;.
h. (xiv) To the best of such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction)knowledge, there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described disclosed in the Registration Statement or the Prospectus but are not described as required;Prospectus, other than those disclosed therein.
i. (xv) To the best of such counsel's knowledge after reasonable inquiryknowledge, there are no agreements, contracts, indentures, leases except as otherwise stated or other instruments that are required to be described incorporated by reference in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 ActProspectus, the 1940 Act or the Rules Company's execution and Regulations;
j. Neither the issuance delivery of and sale of the Shares, the execution, delivery or performance of the Underwriting its obligations under this Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby do not (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust Company or any of its subsidiaries pursuant to any agreement, indenture, lease or other instrument to which the terms Company or any of its subsidiaries is a party or which the Company or any subsidiary may be bound, (B) result in any violation of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws charter or bylaws of the Trust Company or (C) result in any violation of any applicable law, administrative regulation or administrative or court decree the effect of which would be material to the Company and its subsidiaries taken as a whole.
(xvi) Such counsel does not know of any contract or other document required to be described or referred to in the Registration Statement or the Prospectus or to be filed or incorporated by reference as an exhibit to the Registration Statement or any Incorporated Document that are not described or referred to or filed or incorporated by reference as an exhibit thereto.
(xvii) Based upon current law, including relevant statutes, regulations and judicial and administrative precedent (which is subject to change on a retroactive basis), and subject to all of the limitations, qualifications, conditions and factual assumptions set forth herein, the Company has qualified as a REIT under the Code, for each taxable year commencing with its taxable year ended December 31, 1993, and the investment policies organization and restrictions described method of operation of the Company and each of its subsidiaries will enable the Company to continue to meet the requirements for qualification and taxation as a REIT for its taxable year ending December 31, 1997 and each taxable year thereafter. However, such counsel may state that they are unable to opine whether the Company will actually continue to qualify as a REIT because such qualification will depend on future transactions and events that cannot be known at the date of such opinion.
(xviii) In connection with such counsel's participation in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements preparation of the 1940 Act Registration Statement and the 1940 Act Rules Prospectus, such counsel has not independently verified the accuracy, completeness or fairness of the statements contained or incorporated therein, and Regulations; the limitations inherent in the examination made by such counsel and Such the knowledge available to such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect are such that such counsel has acted is unable to assume, and does not assume, any responsibility for such accuracy, completeness or fairness. However, on the Trust basis of such counsel's review and participation in conferences in connection with the preparation of the Registration StatementStatement and the Prospectus, and based on relying as to materiality to a large extent upon opinions of officers and other representatives of the foregoingCompany, while such counsel has does not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, date contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading or misleading, and such counsel does not believe that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received Incorporated Documents, considered as a whole on the Closing Date an opinion of the General Counsel of the Advisordate hereof, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or contain any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. However, such counsel expresses no opinion or belief as to any document filed by the Company under the Exchange Act, whether before or after the effective date of the Registration Statement, except to the extent that any such document is an Incorporated Document read together with the Registration Statement or the Prospectus and considered as a whole, nor does such counsel express any opinion or belief as to the exhibits, financial statements and other financial information contained or incorporated by reference in the Registration Statement, the Prospectus or the Incorporated Documents.
Appears in 1 contract
Samples: Underwriting Agreement (Nationwide Health Properties Inc)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the TrustFund, the Advisor Adviser, and the Underwriterseveral Underwriters. Very truly yours, COLONIAL NUVEEN MUNICIPAL HIGH INCOME TRUST OPPORTUNITY FUND By:____________________________________ COLONIAL MANAGEMENT ASSOCIATES, INC: ------------------------------------- Title: NUVEEN ADVISORY CORP. By:____________________________________ : ------------------------------------- Title: Confirmed as of the date first above mentionedwritten on behalf of themselves and the other several Under- writers named in Schedule I hereto. SALOXXX XXXXX XXXNXX XXXAS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS X.X. XXXXXXX & SONS, INC. By:______________________ Managing Director 23 : ------------------------------- Title: SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Underwriter Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx ---------------- X.X. Xxxxxxx & Sons, Inc. Wachovia Capital Markets, LLC Nuveen Investments, LLC Xxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 Xxxx Xxxxxx, Incorporated Xxxxxxxxxxx & Co. Inc. Quick & Xxxxxx, Inc., A FleetBoston Financial Company RBC Xxxx Xxxxxxxx, Inc. TD Waterhouse Investor Services, Inc. EXHIBIT A FORM OF OPINION OF ROPES Form of Xxxx Xxxx & GRAY Xxxxx LLC Opinion
i. The Underwriter shall have received on Registration Statement and all post-effective amendments, if any, are effective under the Closing Date an opinion of Ropes & GrayAct and, counsel for the Trust, dated the Closing Date and addressed to the Underwriterbest of our knowledge after due inquiry, in form no stop order with respect thereto has been issued and substance satisfactory no proceeding for that purpose has been instituted or is threatened by the Commission. Any filing of the Prospectus or any supplements thereto required under Rule 497 under the Act prior to the Underwriter date hereof have been made in accordance with such rule.
ii. The Fund has been duly formed and to the effect that:
a. The Trust is validly existing as a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts Massachusetts, with full business trust power and authority to ownconduct all the activities conducted by it, to own or lease and operate its properties all assets owned (or to be owned) or leased (or to be leased) by it and to conduct its business business, all 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, either alone or in the aggregate, would not have a material adverse effect on the Fund, and, to the best of our knowledge after due inquiry, the Fund 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 Prospectus, except where the failure to obtain such licenses, permits, consents, orders, approvals and other authorizations, either alone or in the aggregate, would not have a material adverse effect on the Fund.
iii. The number of authorized, issued and outstanding shares of Common Shares of the Fund is as set forth in the Registration Statement and the Prospectus under the caption Description of Shares--Common Shares" and in the statement of additional information under the caption "Financial Statements--Statements of Assets and Liabilities as of November 3, 2003." The Common Shares of the Fund conform in all material respects to issue and sell the description of them in the Prospectus under the caption "Description of Shares as contemplated by --Common Shares." All the Underwriting Agreement;
b. The outstanding Common Shares have been duly authorized andand are validly issued, fully paid and (except as described in the Prospectus under "Certain Provisions in the Declaration of Trust") nonassessable. The Shares to be issued and delivered to and paid for by the Underwriters in accordance with the Underwriting Agreement against payment therefor as provided by the Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, Underwriters as so provided will have been validly issued and will be validly issued, fully paid and nonassessable and free (except as described in the Prospectus under "Certain Provisions in the Declaration of Trust") nonassessable. No person is entitled to any preemptive or other similar rights and will conform with respect to the description thereof in Shares under the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements Declaration of Massachusetts law; and the relative rights, interests, powers and preferences Trust or by-laws of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable Fund or under Massachusetts law;law or, to counsel's knowledge, otherwise.
c. iv. The Shares conform in all material respects Fund is duly registered with the statements concerning them contained in Commission under the Prospectus1940 Act as a diversified, closed-end management investment company and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective all action under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; , necessary to make the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) public offering and consummate the sale of the 1940 Act relating to Shares as provided in the Trust Underwriting Agreement has been issued and no proceeding for any such purpose is pending or threatened taken by the Commission;Fund.
e. v. The Registration Statement Fund has full business trust power to enter into each of the Underwriting Agreement, the Investment Management Agreement, the Custody Agreement, the Transfer Agency Agreement and the Prospectus comply Expense Reimbursement Agreement, (the Investment Management Agreement, the Custody Agreement, the Transfer Agency Agreement and the Expense Reimbursement Agreement are referred to collectively as the "Fund Agreements") and to form perform all of the terms and provisions thereof to be carried out by it and (A) each of the Underwriting Agreement and the Fund Agreements has been duly and validly authorized, executed and delivered by the Fund, (B) each of the Underwriting Agreement and each Fund Agreement complies in all material respects with the all applicable provisions of the 1933 Act, the 1940 Act and the Rules Advisers Act, as the case may be, and Regulations (except C) assuming due authorization, execution and delivery by the other parties thereto and that no opinion need be expressed 50 performance of the Fund Agreements by such other parties will not violate law, agreements to which such other parties or their properties are subject or orders applicable to such other parties, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable against the Fund 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) except as rights to indemnity thereunder may be limited by federal or state securities laws.
vi. None of (A) the financial statements execution and delivery by the Fund of the Underwriting Agreement or other financial data contained therein);
f. The statements made in the Prospectus Fund Agreements, (including B) the bStatement issue and sale by the Fund of Additional Informationthe Shares as contemplated by the Underwriting Agreement and (C) the performance by the Fund of its obligations under the captions "The Auction" Underwriting Agreement and "Description of Municipal Preferred", insofar as they purport to summarize the provisions Fund Agreements or consummation by the Fund of the Bylaws other transactions contemplated by the Underwriting Agreement and the Fund Agreements conflicts with or other documents will conflict with, or agreements specifically referred to thereinresults or will result in a breach of, constitute accurate summaries the Declaration of Trust or the By-laws of the terms of Fund or any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law material agreement or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or instrument to which the Trust Fund is a party or any of its properties by which the Fund is subject, bound that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be is filed as an exhibit to the Registration Statement Statement, or any law, rule or regulation which in our experience is normally applicable to transactions of the type contemplated by the Underwriting Agreement, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, specifically naming the Fund and known to us, except that are not described we express no opinion as to the securities or filed "blue sky" laws applicable in connection with the purchase and distribution of the Shares by the Underwriters pursuant to the Underwriting Agreement and except that, in the published opinion of the Commission, the indemnification provisions in the Underwriting Agreement and the Fund Agreements, insofar as required by they relate to indemnification for liabilities arising under the 1933 Act, are against public policy as expressed in the 1940 1933 Act or the Rules and Regulations;therefore unenforceable.
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any vii. No consent, approval, authorization or other order of any court (to counsel's knowledge) or registration governmental agency or filing body or securities exchange or association, whether foreign or domestic, is required by the Trust withFund 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 Underwriting Agreement and the Fund Agreements, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may (A) have been obtained prior to under the date hereof federal securities laws and such as (B) may be required for compliance with by the AMEX or under state securities and or "blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other sky" laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation purchase and distribution of the Registration StatementShares by the Underwriters pursuant to the Underwriting Agreement.
viii. The Shares have been approved for listing on the AMEX, subject to official notice of issuance, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Fund's Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing Form 8-A under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business 1934 Act is effective.
ix. Other than as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To , to the best of such counsel's our knowledge after reasonable due inquiry, there are no legal or governmental proceedings pending or threatened against the AdviserFund.
x. The Fund does not require any tax or other rulings to enable it to qualify as a regulated investment company under Subchapter M of the Code.
xi. The section in the Prospectus entitled "Taxes" and the section in the Statement of Additional Information entitled "Taxes", to the extent they describe or summarize tax laws, doctrines or practices in the United States, legal matters, agreements, documents or proceedings discussed therein, present an accurate description or fair summary thereof as of the date of this opinion.
xii. The Registration Statement, at the time it became effective, and the Prospectus, as of the date thereof (in each case except for the financial statements and schedules including the notes and schedules thereto, and other financial, statistical or accounting data included therein or omitted therefrom, as to which we express no view), complied as to form in all material respects with the Adviser requirements of the Act and the 1940 Act. While we have not checked the accuracy and completeness of or any of its properties is subjectotherwise verified, that and are required to be described not passing upon and assume no responsibility for the accuracy or completeness of, the statements contained in the Registration Statement or the Prospectus but are not described as required;
e. To Prospectus, except to the best limited extent set forth in paragraph (xi) above, in the course of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance our review of the Underwriting Agreement nor the consummation by the Adviser contents of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an with certain officers and employees of the Fund and the Fund's independent accountants, no facts have come to our attention that cause us to believe that the Registration Statement, at the time it became effective (but after giving effect to any changes incorporated pursuant to Rule 430A under the Act), contained any untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading (except that we express no view with respect to the financial statements, including notes and schedules thereto, or any other financial, statistical or accounting data included therein), or that the Prospectus, as of the date it was filed with the Commission pursuant to Rule 497 under the Act and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading (except that we express no view with respect to the financial statements, including notes and schedules thereto, or any other financial, statistical or accounting data included therein). EXHIBIT B Form of Nuveen Advisory Corp.'s Internal Counsel Opinion
i. The Adviser has been duly formed and is validly existing as a corporation under the laws of its jurisdiction of incorporation with full power and authority 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 to enter into and perform its obligations under the Underwriting Agreement and the Investment Management Agreement.
ii. The Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting as investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
iii. The Adviser has full power and authority to enter into each of the Underwriting Agreement, the Investment Management Agreement and the Expense Reimbursement Agreement (the Investment Management Agreement and the Expense Reimbursement Agreement are referred to collectively as the "Adviser Agreements") and to carry out all the terms and provisions thereof to be carried out by it, and each such agreement has been duly and validly authorized, executed and delivered by the Adviser; each of the Underwriting Agreement and each Adviser Agreement complies in all material respects with all provisions of the 1940 Act and the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto and that performance of each Adviser Agreement by such other parties will not violate law, agreements to which such other parties or their properties are subject or orders applicable to such other parties, each Adviser Agreement constitutes a legal, valid and binding obligation of the Adviser, enforceable against the Adviser 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) except as rights to indemnity thereunder may be limited by federal or state securities laws.
iv. Neither (A) the execution and delivery by the Adviser of the Underwriting Agreement or any Adviser Agreement nor (B) the consummation by the Adviser of the transactions contemplated by, or the performance of its obligations under the Underwriting Agreement or any Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the charter or by-laws of the Adviser or any agreement or instrument to which the Adviser is a party or by which the Adviser is bound, or any federal law, rule or regulation, any provision of the Delaware General Corporation Law or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, specifically naming the Adviser and known to counsel, except in each case for such conflicts or breaches which do not, either alone or in the aggregate, have a material adverse effect on the Adviser's ability to perform its obligations under the Underwriting Agreement and the Adviser Agreements, and except that, in the published opinion of the Commission, the indemnification provisions in the Underwriting Agreement and the Adviser Agreements, insofar as they relate to indemnification for liabilities arising under the 1933 Act, are against public policy as expressed in the 1933 Act and therefore unenforceable.
v. No consent, approval, authorization or order of any court (to my knowledge), 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 Adviser of its obligations under, the Underwriting Agreement and any Adviser Agreement, except (i) such as have been obtained under the federal securities laws and (ii) 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 the Underwriting Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Municipal High Income Opportunity Fund)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the TrustFund, the Advisor Adviser, the Sub-Adviser and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL NEUBERGER BERMAN REAL ESTATE INCOME TRUST XXXX XXX. By:____________________________________ COLONIAL : --------------------------------------- Title: NEUBERGER BERMAN MANAGEMENT ASSOCIATES, INC. By:____________________________________ : --------------------------------------- Title: NEUBERGER BERMAN, LLC By: --------------------------------------- Title: Confirmed as of the date first above mentionedwritten on behalf of themselves and the other several Under- writers named in Schedule I hereto. SALOXXX XXXXX XXXNXX XXXAS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS A.G. EDWARDS & SONS, INC. By:______________________ Managing Director 23 Xx: --------------------------------- Title: SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Underwriters Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 ------------ ---------------- A.G. Edwards & Sons, Inc. [ ] Total [ ] ===== === 47 EXHIBIT A FORM OF OPINION OF ROPES KIRKPATRICK & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & GrayLOCKHART OPINION
1. Xxx Xxxx is x xxxxxxation duly incorporated, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing and in good standing under the laws of the Commonwealth State of Massachusetts with full Maryland and is qualified to do business as a foreign corporation in the State of New York, which such counsel has been advised by an officer of the Fund is the only state in which the Fund maintains an office for the conduct of its business.
2. The Fund has the corporate power and authority to own, lease and operate to: (i) own its properties and to conduct its business as described in the Registration Statement and the Prospectus; and (ii) execute, deliver, and perform its obligations under the Underwriting Agreement and the Fund Agreements.
3. To such counsel's knowledge, the Fund does not have any subsidiaries.
4. The Shares, conform in all material respects as to all statements as to legal matters relating thereto contained in the Prospectus. No person is entitled to any preemptive or other similar rights with respect to the Common Shares or the issuance of the Shares.
5. The number of authorized Common Shares and Shares is as set forth in the Prospectus under the caption "The Fund." All Common Shares and Preferred Shares that to issue such counsel's knowledge have been issued and sell are outstanding prior to the Shares as contemplated issuance of the Shares: (i) have been duly authorized and validly issued and are fully paid and non-assessable; and (ii) have been offered and sold by the Underwriting Agreement;Fund in compliance with applicable law.
b. 6. The Shares have been duly authorized for issuance and sale to the Underwriters pursuant to the Underwriting Agreement and, when issued and delivered by the Fund pursuant to the Underwriter Underwriting Agreement against payment therefor of the consideration set forth in accordance with the terms of the Underwriting Agreement, will be validly issued, issued and fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the Bynon-Laws, are legal, valid, binding and enforceable under Massachusetts law;assessable.
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. 7. The Registration Statement is Statement, including any Rule 462(b) Registration Statement, has become effective under the 1933 Act and the 1940 Act; , any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations 497(c) or Rule 497(h) has been made in the manner and within the time periods period required by Rule 497(b) or (h)497, as the case may be; and to the best knowledge of such counsel's knowledge, no stop order suspending its the effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the any Rule 462(b) Registration Statement has been issued, or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by proceedings therefor threaten under the 1933 Act, the 1940 Act or the Rules and Regulations;.
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. 8. The Trust Fund is duly registered with the Commission under the 1940 Act as a closed-end non-diversified management investment company;.
m. The provisions of the Declaration 9. Other than with respect to financial statements and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the related notes and schedules theretoand any other financial, accounting and statistical information that is included or incorporated by reference in, or other financial data contained or referred to thereinomitted from, the following documents, as to which such counsel need express no belief)opinion; the Registration Statement, including any Rule 462(b) Registration Statement and any Rule 430A Information, the Prospectus and any amendment or supplement thereto through the date hereof complied as to form in all material respects with the requirements of its effective datethe 1933 Act, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the 1940 Act and the Rules and Regulations thereunder.
10. Insofar as the statements therein not misleading or that in the Prospectus under the captions "Description of New Preferred Shares," "Description of Common Shares" and "Tax Matters" and in the Registration Statement under Item 29 (except for Indemnification) constitute summaries of legal matters, provisions of the financial statements, including the notes and schedules thereto, Fund's charter or other financial data contained bylaws or legal proceedings or legal conclusions referred to therein, as those statements fairly present the information called for with respect to which such counsel need express no belief) contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements thereinthose legal matters, in light of the circumstances under which they were made, not misleading. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser proceedings or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingconclusions.
Appears in 1 contract
Samples: Underwriting Agreement (Neuberger Berman Real Estate Income Fund Inc)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the TrustFund, the Advisor Adviser, the Sub-Adviser and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL XXXXXXXXX XXXXXX REALTY INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATES, FUND INC. By:____________________________________ Confirmed as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXXTitle: XXXXXXXXX XXXXXX MANAGEMENT INC. By:________________________________ Managing Title: XXXXXXXXX XXXXXX, LLC By:________________________________ Title: Confirmed as of the date first above written on behalf of themselves and the other several Under- writers named in Schedule I hereto. AS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS X.X. XXXXXXX & SONS, INC. By: ______________________ Title: Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Underwriters Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx ------------ ---------------- X.X. Xxxxxxx & Sons, Inc. 5,692 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 Incorporated 1,328 Citigroup Global Markets Inc. 780 Total 7,800 ===== ===== EXHIBIT A FORM OF OPINION OF ROPES XXXXXXXXXXX & GRAY XXXXXXXX OPINION
1. The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust Fund is a business trust corporation duly organized and incorporated, validly existing and in good standing under the laws of the Commonwealth State of Massachusetts with full Maryland and is qualified to do business as a foreign corporation in the State of New York, which such counsel has been advised by an officer of the Fund is the only state in which the Fund maintains an office for the conduct of its business.
2. The Fund has the corporate power and authority to own, lease and operate to: (i) own its properties and to conduct its business as described in the Registration Statement and the Prospectus; and (ii) execute, deliver, and perform its obligations under the Underwriting Agreement and the Fund Agreements.
3. To such counsel's knowledge, the Fund does not have any subsidiaries.
4. The Preferred Shares, conform in all material respects as to all statements as to legal matters relating thereto contained in the Prospectus. No person is entitled to any preemptive or other similar rights with respect to the Common Shares or the issuance of Preferred Shares.
5. The number of authorized Common Shares and Shares is as set forth in the Prospectus under the caption "The Fund." All Common Shares that to such counsel's knowledge have been issued and are outstanding prior to issue the issuance of the Preferred Shares: (i) have been duly authorized and sell the Shares as contemplated validly issued and are fully paid and non-assessable; and (ii) have been offered and sold by the Underwriting Agreement;Fund in compliance with applicable law.
b. 6. The Preferred Shares have been duly authorized for issuance and sale to the Underwriters pursuant to the Underwriting Agreement and, when issued and delivered by the Fund pursuant to the Underwriter Underwriting Agreement against payment therefor of the consideration set forth in accordance with the terms of the Underwriting Agreement, will be validly issued, issued and fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the Bynon-Laws, are legal, valid, binding and enforceable under Massachusetts law;assessable.
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. 7. The Registration Statement is Statement, including any Rule 462(b) Registration Statement, has become effective under the 1933 Act and the 1940 Act; , any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations 497(c) or Rule 497(h) has been made in the manner and within the time periods period required by Rule 497(b) or (h)497, as the case may be; and to the best knowledge of such counsel's knowledge, no stop order suspending its the effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the any Rule 462(b) Registration Statement has been issued, or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by proceedings therefor threatened, under the 1933 Act, the 1940 Act or the Rules and Regulations;.
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. 8. The Trust Fund is duly registered with the Commission under the 1940 Act as a closed-end non-diversified management investment company;.
m. The provisions 9. Other than with respect to financial statements and related notes and schedules and any other financial, accounting and statistical information that is included or incorporated by reference in, or omitted from, the following documents, as to which such counsel need express no opinion: (i) the Registration Statement, including any Rule 462(b) Registration Statement and any Rule 430A Information, the Prospectus and any amendment or supplement thereto through the date hereof complied as to form in all material respects with the requirements of the Declaration and By-Laws of 1933 Act, the Trust 1940 Act and the investment policies Rules and restrictions described Regulations thereunder; and (ii) the Fund's notification of registration on Form N-8A complied as to form in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply all material respects with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; Regulations thereunder.
10. Insofar as the statements in the Prospectus under the captions "Description of Preferred Shares" "Tax Matters" and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus under Item 29 (other than as set forth in (f)Indemnification) constitute summaries of legal matters, (g) and (m) above) in the course of their review provisions of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, Fund's charter or other financial data contained bylaws or legal proceedings or legal conclusions referred to therein, as those statements fairly present the information called for with respect to which such counsel need express no belief)those legal matters, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser proceedings or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingconclusions.
Appears in 1 contract
Samples: Underwriting Agreement (Neuberger Berman Realty Income Fund Inc)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New YorkYork without reference to choice of law principles thereunder. This Agreement may be signed in various counterparts counterparts, which together shall constitute one and the same instrument. If signed in counterparts, this This Agreement shall not become be effective unless when, but only when, at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End The Company, the Trust and the Underwriters each hereby irrevocably waive any right they may have to a trial by jury in respect to any claim based upon or arising out of Text] 22 this Agreement or the transactions contemplated hereby. Please confirm that the foregoing correctly sets forth the agreement among the TrustCompany, the Advisor Trust and the Underwriterseveral Underwriters. Very truly yours, COLONIAL MUNICIPAL INCOME VOC BRAZOS ENERGY PARTNERS, L.P. By: Xxxx Texas Partners, LLC, its General Partner By: Xxxx Holding Corporation, its Sole Managing Member By: /s/ J. Xxxxxxx Xxxx Name: J. Xxxxxxx Xxxx Title: Designated Representative and Sole Member of the Board of Directors VOC ENERGY TRUST By:____________________________________ COLONIAL MANAGEMENT : The Bank of New York Mellon Trust Company, N.A., Trustee By: /s/ Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: Vice President XXXXXXX XXXXX & ASSOCIATES, INC. By:____________________________________ Confirmed as : /s/ Xxx Xxxxx Name: Xxx Xxxxx Authorized Representative XXXXXX XXXXXXX & CO. INCORPORATED By: /s/ Xxx Xxxx Name: Xxx Xxxx Authorized Representative Xxxxxxx Xxxxx & Associates, Inc. 3,990,600 Xxxxxx Xxxxxxx & Co. Incorporated 3,990,600 Xxxxxxxxxxx & Co., Inc. 775,950 RBC Capital Markets, LLC 775,950 Xxxxxx X. Xxxxx & Co. Incorporated 554,250 Xxxxxx Xxxxxxxxxx Xxxxx, LLC 332,550 Xxxxxx Xxxxxx & Company, Inc. 332,550 Xxxxxxxxxx Securities, Inc. 332,550 Total: 11,085,000 None. Title of the date first above mentioned. SALOXXX XXXXX XXXNXX XXX. By:______________________ Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number securities: Trust Units Total number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The units offered: 11,085,000 Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement Units (excluding the financial statementsoption to purchase an additional 1,662,750 Trust Units) Public offering price: $21.00 per Trust Unit VOC Partners, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.LLC J. Xxxxxxx Xxxx X. X. Xxxxx Will Price
Appears in 1 contract
Applicable Law; Counterparts. This Agreement shall be governed by and ---------------------------- construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among between the TrustCompany, AGH GP, AGH LP and the Advisor Operating Partnership and the Underwriter. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATESAMERICAN GENERAL HOSPITALITY CORPORATION By /s/ Xxxxxxx X. Xxxx -------------------------------------------- Printed Name: Xxxxxxx X. Xxxx Title: Executive Vice President AMERICAN GENERAL HOSPITALITY OPERATING PARTNERSHIP, L.P. By AGH GP, INC., as general partner By /s/ Xxxxxxx X. Xxxx -------------------------------------------- Printed Name: Xxxxxxx X. Xxxx Title: Executive Vice President AGH GP, INC. By:____________________________________ By /s/ Xxxxxxx X. Xxxx -------------------------------------------- Printed Name: Xxxxxxx X. Xxxx Title: Executive Vice President AGH LP, INC. By /s/ Xxxxxxx X. Xxxx -------------------------------------------- Printed Name: Xxxxxxx X. Xxxx Title: Executive Vice President Confirmed as of the date first above mentionedmentioned on behalf of themselves. SALOXXX XXXX XXXXX XXXNXX XXX. By:______________________ Managing Director 23 XXXX XXXXXX, INCORPORATED By /s/ Xxxxx X. Xxxxxx ------------------------------- Printed Name: Xxxxx X. Xxxxxx Title: Principal SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number CURRENT HOTELS Holiday Inn Dallas DFW Airport West Courtyard by Marriott Meadowlands Hampton Inn Richmond Airport Hotel Maison de Ville Hilton Hotel-Toledo Holiday Inn Select Dallas DFW Airport South Holiday Inn Select New Orleans Hampton Inn Ocean City International Airport Crowne Plaza Madison Holiday Inn Park Center Plaza Wyndham Albuquerque Airport Hotel Wyndham Airport Hotel San Xxxx Holiday Inn Select Mission Valley Wyndham Hotel Lake Buena Vista Holiday Inn Resort Monterey Hilton Hotel Durham Radisson Hotel Arlington Heights Wyndham Garden Hotel-Marietta Doubletree Guest Suites Hotel Westin Resorts Key Largo Holiday Inn Corporate Center Phoenix Hilton Airport Hotel Grand Rapids Holiday Inn Select Bucks County Marriott Houston West Loop Radisson Twin Towers Xxxxxxx Xxxxxx Hotel Cocoa Beach Courtyard by Marriott Durham Crowne Plaza Suites Las Vegas St. Tropez Suites Las Vegas Ramada Inn Mahwah Sheraton Crossroads Hotel Mahwah Ramada Plaza Meriden Sheraton Four Points Hotel Mt. Arlington Crowne Plaza Portland Ramada Plaza Xxxxxxx Ramada Plaza Hotel Alexandria Holiday Inn and Suites Alexandria Holiday Inn Annapolis Holiday Inn Express BWI Holiday Inn X'Xxxx International Hotel Doubletree Resort Surfside Clearwater Courtyard by Marriott Lake Buena Vista Holiday Inn Ft. Lauderdale Beach Galleria Doubletree Hotel Tampa Airport Westshore The Lodge at the Seapost, Mystic Holiday Inn Forest Park Holiday Inn Richmond Ramada Inn Gulfview Clearwater Beach Xxxxxx Xxxxxxx Resort Key Largo Holiday Inn Madeira Beach Courtyard by Marriott Marina del Rey Courtyard by Marriott Century City Radisson Inn Airport Rochester SCHEDULE 6(f) SUBSIDIARIES State or Other Jurisdiction OF INCORPORATION OR Subsidiary Organization/Type of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & GrayEntity ------------------------------------------- ---------------------------------------------- AGH GP, counsel for the TrustInc. Nevada/Corporation AGH LP, dated the Closing Date and addressed to the UnderwriterInc. Nevada/Corporation American General Hospitality Operating, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to ownDelaware/Limited Partnership L.P. AGH UPREIT LLC Delaware/Limited Liability Company AGH SECAUCUS LLC Delaware/Limited Liability Company AGH DFW South LLC Delaware/Limited Liability Company AGH 75 Arlington Heights LLC Delaware/Limited Liability Company AGH 2780 Atlanta LLC Delaware/Limited Liability Company 2929 Xxxxxxxx Limited Liability Company Delaware/Limited Liability Company BCHI Acquisition, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized andLLC Delaware/Limited Liability Company 3100 Glendale Joint Venture Ohio/General Partnership MDV Limited Partnership Texas/Limited Partnership Madison Motel Associates Wisconsin/General Partnership 183 Hotel Associates, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting AgreementLtd. Texas/Limited Partnership Richmond Williamsburg Associates, will be validly issuedLtd. Texas/Limited Partnership 455 Meadowlands Associates, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rightsLtd. Texas/Limited Partnership DFW South I Limited Partnership Texas/Limited Partnership Lake Buena Vista Partners, interestsLtd. Florida/Limited Partnership Cocoa Beach Hilton, powers and preferences of the SharesLtd. Florida/Limited Partnership 75 Arlington Heights Limited Partnership, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-LawsDelaware/Limited Partnership L.P. 2780 Atlanta Limited Partnership, are legalL.P. Delaware/Limited Partnership Portland/Xxxxxxx Corp. Delaware/Corporation AGH Portland/Xxxxxxx LLC Delaware/Limited Liability Company Portland/Xxxxxxx LLC Delaware/Limited Liability Company Mt. Arlington New Jersey, validLLC Delaware/Limited Liability Company AGH X'Xxxx International LLC Delaware/Limited Liability Company Durham I-85 Limited Partnership Delaware/Limited Partnership AGH PSS I, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.Inc. Delaware/Corporation
Appears in 1 contract
Samples: Underwriting Agreement (American General Hospitality Corp)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New YorkYork without reference to choice of law principles thereunder. This Agreement may be signed in various counterparts counterparts, which together shall constitute one and the same instrument. If signed in counterparts, this This Agreement shall not become be effective unless when, but only when, at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End The Company and the Underwriter each hereby irrevocably waive any right they may have to a trial by jury in respect to any claim based upon or arising out of Text] 22 this Agreement or the transactions contemplated hereby. Please confirm that the foregoing correctly sets forth the agreement among the Trust, the Advisor Company and the Underwriter. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ARGONAUT GROUP, INC. /s/ XXXXX X. XXXXXXX, XX. Its: Senior Vice President XXXXXXX XXXXX & ASSOCIATES, INC. By:____________________________________ Confirmed as of the date first above mentioned: /s/ XXXXXXX X. XXXXXXX October , 2005 ARGONAUT GROUP, INC. SALOXXX 00000 Xxxxxxx Xxxxx, Xxxxx 000 Xxx Xxxxxxx, Xxxxx 00000 XXXXXXX XXXXX XXXNXX XXX& ASSOCIATES, INC. By:______________________ Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray000 Xxxxxxxx Xxxxxxx Xx. Xxxxxxxxxx, counsel for the Trust, dated the Closing Date and addressed XX 00000 Dear Sirs: This letter is delivered to you pursuant to the Underwriting Agreement (the “Underwriting Agreement”) to be entered into by the Company, as issuer, and Xxxxxxx Xxxxx & Associates, Inc., as underwriter (the “Underwriter, in form ”). Upon the terms and substance satisfactory subject to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms conditions of the Underwriting Agreement, will be validly issuedthe Underwriter intends to effect a public offering of shares of Common Stock, fully paid and nonassessable and free par value $0.10 per share, of any preemptive or similar rights and will conform the Company (the “Shares”), with respect to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences registration statement of the SharesCompany on Form S-3, and File No. 333-100321 (the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The “Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (hStatement”), as filed with the case Securities and Exchange Commission (the “Offering”). The undersigned recognizes that it is in the best financial interests of the undersigned, as an officer or director, or an owner of stock, options, warrants or other securities of the Company (the “Company Securities”), that the Company complete the proposed Offering. The undersigned further recognizes that the Company Securities held by the undersigned are, or may be; , subject to certain restrictions on transferability, including those imposed by United States federal securities laws. Notwithstanding these restrictions, the undersigned has agreed to enter into this letter agreement to further assure the Underwriter that the Company Securities of the undersigned, now held or hereafter acquired, will not enter the public market at a time that might impair the underwriting effort. Therefore, as an inducement to the best knowledge Underwriter to execute the Underwriting Agreement, the undersigned hereby acknowledges and agrees that the undersigned will not (i) offer, sell, contract to sell, pledge, grant any option to purchase or otherwise dispose of such counsel(collectively, no stop order suspending its effectiveness a “Disposition”) any Company Securities, or order any securities convertible into or exercisable or exchangeable for, or any rights to purchase or otherwise acquire, any Company Securities held by the undersigned or acquired by the undersigned after the date hereof, or that may be deemed to be beneficially owned by the undersigned (collectively, the “Lock-Up Shares”), pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) promulgated under the captions "The Auction" and "Description Securities Act of Municipal Preferred"1933, insofar as they purport to summarize amended (the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects“Act”), and fairly present the information called Securities Exchange Act of 1934, as amended, for with respect thereto by Form N-2 under a period commencing on the 1940 Act;
h. To such counsel's knowledge (but without a search of date hereof and ending 60 days after the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance date of the Underwriting Agreement (the “Lock-Up Period”), without the prior written consent of Xxxxxxx Xxxxx & Associates, Inc. or (ii) exercise or seek to exercise or effectuate in any manner any rights of any nature that the undersigned has or may have hereafter to require the Company to register under the Act the undersigned’s sale, transfer or other disposition of any of the Trust Agreements Lock-Up Shares or other securities of the Company held by the Trustundersigned, nor the consummation or to otherwise participate as a selling securityholder in any manner in any registration effected by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered Company under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (Act, including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on during the Lock-Up Period, notwithstanding the foregoing, while such counsel has not themselves independently verified if (x) during the accuracy last 17 days of the Lock-Up Period, the Company issues a release concerning earnings or completeness material news or a material event relating to the Company; or (y) prior to the expiration of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement Lock-Up Period, the Company announces it will release earnings results during the 16 day period beginning on the last day of the Lock-Up Period; the restrictions imposed in this letter agreement shall continue to apply until the expiration of the 18 day period beginning on the issuance of the earnings release or the Prospectus announcement of the material news or material event. The foregoing restrictions are expressly agreed to preclude the undersigned from engaging in any hedging, collar (whether or not for any consideration) or other transaction that is designed to or reasonably expected to lead or result in a Disposition of Lock-Up Shares during the Lock-Up Period, even if such Lock-Up Shares would be disposed of by someone other than such holder. Such prohibited hedging or other transactions would include any short sale or any purchase, sale or grant of any right (including any put or call option or reversal or cancellation thereof) with respect to any Lock-Up Shares or with respect to any security (other than as set forth in a broad-based market basket or index) that includes, relates to or derives any significant part of its value from Lock-Up Shares. Notwithstanding the agreement not to make any Disposition during the Lock-Up Period, you have agreed that the foregoing restrictions shall not apply to:
(f), (g1) and (m) above) the Company Securities being offered in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described prospectus included in the Registration Statement and the ProspectusStatement;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions (2) any grant or exercise of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor options pursuant to the terms Company’s stock option plan;
(3) a bona fide gift or gifts, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein; or
(4) a transfer to any trust for the direct or indirect benefit of the Agreements and Instruments; and
g. The description undersigned or the immediate family of the Adviser in undersigned, provided that the Registration Statement and trustee of the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required trust agrees to be stated therein or necessary to make bound in writing by the statements thereinrestrictions set forth herein, in light of the circumstances under which they were made, and provided further that any such transfer shall not misleadinginvolve a disposition for value.
Appears in 1 contract
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New YorkYork applicable to contracts made and to be performed within the State of New York without regard to principles of conflicts of law. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among between the Trust, the Advisor Company and the UnderwriterInitial Purchasers. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATES, XxXXXXXXX & CO INC. By:____________________________________ : -------------------------------- Name: Title: Confirmed as of the date first above mentioned. SALOXXX XXXXXXX XXXXX XXXNXX XXXXXXXXX INC. XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION By: XXXXXXX XXXXX XXXXXX INC. By:______________________ Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 : ------------------------------------------- Name: Title: EXHIBIT A FORM OF OPINION OF ROPES Form of Opinion of Fulbright & GRAY Xxxxxxxx LLP
1. The Underwriter shall have received on Company has the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full requisite corporate power and authority to ownexecute, lease deliver and operate perform its properties obligations under the Indenture; the execution and to conduct its business as described in the Registration Statement delivery of, and the Prospectus performance by the Company of its obligations under the Indenture have been duly and validly authorized by the Company; and the Indenture has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally and subject to issue the applicability of general principles of equity.
2. No qualification of the Indenture under the 1939 Act is required in connection with the offer and sell sale of the Shares Notes as contemplated by the Underwriting Purchase Agreement;.
b. 3. The Shares Notes have been duly authorized by the Company and, when issued authenticated by the Trustee in accordance with the Indenture and delivered to the Underwriter Initial Purchasers against payment therefor in accordance with the terms of the Underwriting Purchase Agreement, will be have been validly issuedissued and delivered, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation obligations of the Trust Company entitled to the benefits of the Indenture and enforceable in accordance with its their terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements enforcement thereof may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and insolvency or other similar laws affecting the enforcement of general applicability relating to or affecting creditors' rights generally and subject to the applicability of general equity principles;principles of equity.
l. The Trust is duly registered under 4. All the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions outstanding shares of capital stock of the Declaration Company have been duly authorized and By-Laws of the Trust validly issued, are fully paid and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel nonassessable.
5. The Company has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation been duly incorporated and is validly existing and as a corporation in good standing under the laws of The Commonwealth of Massachusettsthe jurisdiction in which it is chartered or organized, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Offering Memorandum, and is duly registered and qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such registration or qualification, except where the failure to so register or qualify could not reasonably be expected to have a Material Adverse Effect.
6. Each of LaBCo. and LaBLLC has been duly organized and is validly existing as a limited partnership and a limited liability company, respectively, in good standing under the laws of its jurisdiction of organization; and the Prospectus;
b. The Underwriting Agreement partnership interests in LaBCo. and the Management Agreement membership interests in LaBLLC have been duly authorized, executed and delivered validly authorized and issued and are fully paid and nonassessable and are owned of record directly or indirectly by the Advisor and each complies with all applicable provisions of Company, to the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best knowledge of such counsel's , to the knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel, free and clear of all liens, encumbrances, equities or claims.
7. The Company's knowledge after reasonable inquiry, the Adviser authorized equity capitalization is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result set forth in the creation or imposition of any lien, charge or encumbrance upon any property or assets of Offering Memorandum under the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingheading "Capitalization."
Appears in 1 contract
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among between the Trust, the Advisor Company and the Underwriterseveral Managers. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST HYPERION TELECOMMUNICATIONS, INC. By:____________________: /s/ Xxxxxx X. Xxxxxxx Name: Title: Vice President Confirmed as of the date first above mentioned on behalf of themselves and the other several Managers named in Schedule I hereto. XXXXX XXXXXX INC. CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED NATIONSBANC XXXXXXXXXX SECURITIES LLC As Lead Managers for the Several Managers By: XXXXX XXXXXX INC. By: /s/ M.E. Xxxxxxxx Name: Title: Managing Director SCHEDULE I HYPERION TELECOMMUNICATIONS INC. Manager Number of Shares Xxxxx Xxxxxx Inc. Credit Suisse First Boston (Europe) Limited NationsBanc Xxxxxxxxxx Securities LLC ________________ COLONIAL MANAGEMENT ASSOCIATESTOTAL SCHEDULE II Xxxxxx X. Xxxxxxxx Xxxxxxx X Xxxxxxxx Xxxx X. Xxxxxxxx Xxxxxxxx X. Xxxxxx SCHEDULE III SUBSIDIARIES SCHEDULE IV JOINT VENTURES EXHIBIT A LIST OF EMPLOYEE PENSION AND BENEFIT PLANS OF HYPERION TELECOMMUNICATIONS, INC. By:____________________________________ Confirmed as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXX. By:______________________ Managing Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 AND ITS SUBSIDIARIES EXHIBIT A B FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on XXXXXXXX INGERSOLL
1. Each of the Closing Date an opinion of Ropes & Gray, counsel for Company and the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust Subsidiaries is a business trust duly organized and validly existing as a corporation or a limited liability company in good standing under the laws of its jurisdiction of formation, as applicable, and has all requisite corporate power and authority to carry on its business as it is being conducted and as described in the Commonwealth Registration Statement and the Prospectuses and to own, lease and operate its properties, and is duly qualified and in good standing as a foreign corporation or limited liability company, as applicable, authorized to do business in each jurisdiction in which the nature of Massachusetts with full its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not, singly or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect").
2. Each of the Joint Ventures has been duly incorporated or formed as a corporation, general partnership, limited partnership or limited liability company under the laws of its jurisdiction of incorporation or formation, as applicable, and has all requisite power and authority to own, lease lease, and operate its properties and to conduct its business as described in the Registration Statement Prospectuses, and is duly qualified to transact business as a foreign corporation, general partnership, limited partnership or limited liability company, as applicable, in each jurisdiction in which the Prospectus character of the business being conducted by it or the location of the property owned by it makes such qualification necessary, except where the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect. Each Joint Venture that is a corporation, limited partnership or limited liability company is validly existing and is in good standing under the laws of its jurisdiction of incorporation or formation, as applicable.
3. All of the outstanding shares of capital stock of the Company have been duly authorized, validly issued, and are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights. All of the outstanding shares of capital stock of the Company is as set forth in the Prospectuses under the caption "Capitalization." The authorized capital stock of the Company conforms in all material respects as to issue and sell legal matters to the description thereof contained in the Prospectuses under the caption "Description of Capital Stock."
4. All the shares of capital stock of the Company outstanding prior to the issuance of the Shares as contemplated to be issued and sold by the Company pursuant to the Underwriting Agreement;
b. The Shares Agreements have been duly authorized andand validly issued, and are fully paid and nonassessable.
5. The Underwritten Shares to be issued and sold to the U.S. Underwriters and Managers by the Company under the U.S. Underwriting Agreement and the International Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriter U.S. Underwriters and Managers against payment therefor in accordance with the terms of the U.S. Underwriting Agreement and the International Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any (A) preemptive rights or (B) to the best knowledge of such counsel after reasonable inquiry, similar rights that entitle or will entitle any person to acquire any shares of Class A Common Stock upon the issuance thereof by the Company.
6. The Adelphia New Shares (as defined in the Prospectuses) have been duly authorized and will conform when issued and delivered to the description thereof Parent against payment therefor in accordance with the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences terms of the Shares, and Adelphia Share Purchase Agreement or the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h)Adelphia Note Contribution Agreement, as the case may be; , will be validly issued, fully paid and nonassessable and free of (A) preemptive rights or (B) to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases similar rights that entitle or other instruments that are required will entitle any person to be described acquire any shares of Class A Common Stock upon the issuance thereof by the Company.
7. The Additional MCI Warrants (as defined in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (AProspectuses) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof duly authorized and, when executed and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust delivered pursuant to the terms of the Agreements Warrant Agreement (the "MCI Warrant Agreement"), dated June 13, 1997, between the Company and Instruments;
k. theretoMCImetro Access Transmission Services, each Trust Agreement constitutes the Inc. ("MCI"), will be valid and binding obligation obligations of the Trust Company, enforceable against the Company in accordance with its their terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements enforcement may be limited by Federal or state securities laws, subject as to enforcement to applicable bankruptcy, insolvency, reorganization reorganization, moratorium and other similar laws affecting the enforceability of general applicability relating to or affecting creditors' rights generally and to by general principles of equity principles;(whether arising under a proceeding at law or in equity).
l. 8. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions maximum number of Shares issuable upon exercise of the Declaration Additional MCI Warrants has been duly authorized and By-Laws reserved for issuance by the Company at the time and in the manner required by the MCI Warrant Agreement and, upon (i) due exercise of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) MCI Warrants and (mii) above) in the course delivery of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of Shares upon such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements thereinexercise, in light of the circumstances under which they were madeeach case, not misleading. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements Additional MCI Warrants and Instruments; andthe MCI Warrant Agreement, such Shares will be validly issued, fully paid and nonassessable.
g. The description 9. Upon due issuance of the Adviser Additional MCI Warrants, the Company will have satisfied its obligation to issue "Additional Initial Warrants" (as such term is defined in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances MCI Warrant Agreement) under which they were made, not misleading.Section 2.2
Appears in 1 contract
Samples: u.s. Underwriting Agreement (Hyperion Telecommunications Inc)
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the TrustCompany, the Advisor Partnership, the Trust and the Underwriter. Very truly yours, COLONIAL MUNICIPAL INCOME TRUST By:____________________________________ COLONIAL MANAGEMENT ASSOCIATESEQUITY INNS, INC. By:____________________________________ : /s/ Xxxxxx X. Silver ------------------------------------- Xxxxxx X. Silver President and Chief Operating Officer EQUITY INNS TRUST By: /s/ Xxxxxx X. Silver ------------------------------------- Xxxxxx X. Silver President and Chief Operating Officer EQUITY INNS PARTNERSHIP, L.P. By: EQUITY INNS TRUST General Partner By: /s/ Xxxxxx X. Silver ------------------------------------- Xxxxxx X. Silver President and Chief Operating Officer Confirmed as of the date first above mentioned. SALOXXX XXXXXXX XXXXX XXXNXX XXXXXXXXX INC. By:______________________ Managing : /s/ Xxx Gugliemone ----------------------------------- Xxx Gugliemone Director 23 SCHEDULE I COLONIAL MUNICIPAL INCOME TRUST Number of Shares of Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 ----- ----- Total........................................ 3,600 ----- 24 EXHIBIT A FORM A-1 DIRECT AND INDIRECT SUBSIDIARIES OF OPINION EQUITY INNS, INC. JURISDICTION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the INCORPORATION/ NAME ORGANIZATION Ownership Percentage ---- --------------- -------------------- Equity Inns Trust (the "Agreements and InstrumentsTrust")) Maryland 100% owned by Equity Inns, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser is not in violation of its corporate charter or by-laws, nor is the Adviser in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound Inc. (the "Agreements and InstrumentsREIT") or any other Agreements and Instruments known to such counsel after due inquiryEquity Inns Services, Inc. (ii"Services") violates or will violate any statuteTennessee 100% owned by the REIT Equity Inns TRS Holdings, law or regulation Inc. (assuming compliance with state securities and blue sky laws)"TRS Tennessee 100% owned by the Holdings") Partnership Equity Inns Partnership, L.P. (iiithe Tennessee Approximately 96.8% "Partnership") violates or will violate any judgmentowned by the Trust; approximately 3.2% owned by various limited partners Equity Inns Partnership II, injunctionL.P. Tennessee 1% GP interest held by the Trust; 99% LP interest held by the Partnership Equity Inns/West Virginia Partnership, order or decree that is applicable to Tennessee 1% GP interest held by L.P. Services; 99% LP interest held by the Advisor or any of its properties and that is known to such counselPartnership EQI Financing Corporation Tennessee 100% owned by the Trust EQI Financing Partnership I, or (iv) will result in L.P. Tennessee Approximate 1%-GP interest held by EQI Financing Corporation; approximately 99% LP interest held by the creation or imposition of any lienPartnership EQI Financing Corporation II Tennessee 100% owned by the Trust EQI Financing Partnership II, charge or encumbrance upon any property or assets of L.P. Tennessee 1% GP interest held by EQI Financing Corporation II; 99% LP interest held by the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.Partnership
Appears in 1 contract
Applicable Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. [End of Text] 22 Please confirm that the foregoing correctly sets forth the agreement among the Trust, the Advisor and the Underwriter. Very truly yours, COLONIAL HIGH INCOME MUNICIPAL INCOME TRUST By:____________________________________ : -------------------------------------- COLONIAL MANAGEMENT ASSOCIATES, INC. By:____________________________________ : -------------------------------------- Confirmed as of the date first above mentioned. SALOXXX XXXXX XXXNXX XXX. By:______________________ : ------------------------------- Managing Director 23 SCHEDULE I COLONIAL HIGH INCOME MUNICIPAL INCOME TRUST Number of Shares of Series T Municipal Underwriter Preferred ----------- --------- Saloxxx Xxxxx Xxxnxx Xxx..................... 3,600 . ........................... 2,400 ----- ----- Total........................................ 3,600 ----- 24 Total ............................................... 2,400 25 EXHIBIT A FORM OF OPINION OF ROPES & GRAY The Underwriter shall have received on the Closing Date an opinion of Ropes & Gray, counsel for the Trust, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Trust is a business trust duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to issue and sell the Shares as contemplated by the Underwriting Agreement;
b. The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights and will conform to the description thereof in the Registration Statement and the Prospectus; the Certificate evidencing the Shares complies with all requirements of Massachusetts law; and the relative rights, interests, powers and preferences of the Shares, and the obligation of the Trust to redeem such Shares upon the terms and conditions set forth in the By-Laws, are legal, valid, binding and enforceable under Massachusetts law;
c. The Shares conform in all material respects with the statements concerning them contained in the Prospectus, and the authorized and outstanding shares of beneficial interest of the Trust are as set forth in the Prospectus;
d. The Registration Statement is effective under the 1933 Act and the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the 1933 Act Rules and Regulations has been made within the time periods required by Rule 497(b) or (h), as the case may be; to the best knowledge of such counsel, no stop order suspending its effectiveness or order pursuant to Section 8(e) of the 1940 Act relating to the Trust has been issued and no proceeding for any such purpose is pending or threatened by the Commission;
e. The Registration Statement and the Prospectus comply as to form in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or other financial data contained therein);
f. The statements made in the Prospectus (including the bStatement Statement of Additional Information) under the captions "The Auction" and "Description of Municipal Preferred", insofar as they purport to summarize the provisions of the Bylaws or other documents or agreements specifically referred to therein, constitute accurate summaries of the terms of any such documents;
g. The statements made in the Prospectus (including the Statement of Additional Information) under the captions "Tax Matters", insofar as they constitute matters of law or legal conclusions, have been reviewed by such counsel and constitute accurate statements of any such matters of law or legal conclusions in all material respects, and fairly present the information called for with respect thereto by Form N-2 under the 1940 Act;
h. To such counsel's knowledge (but without a search of the dockets of any court, administrative body or filing office in any jurisdiction), there are no legal or governmental proceedings pending or threatened against the Trust, or to which the Trust or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
i. To the best of such counsel's knowledge after reasonable inquiry, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations;
j. Neither the issuance and sale of the Shares, the execution, delivery or performance of the Underwriting Agreement or any of the Trust Agreements by the Trust, nor the consummation by the Trust of the transactions contemplated thereby (A) requires any consent, approval, authorization or other order of or registration or filing by the Trust with, with the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities and blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the Declaration, the By-Laws or other organizational documents of the Trust or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound and that is identified, in an officer's certificate of the Trust, as material to the business, financial condition, operations, properties or prospects of the Trust (the "Agreements and Instruments"), (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Trust or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust pursuant to the terms of the Agreements and Instruments;
k. The Underwriting Agreement and the Trust Agreements have been duly authorized, executed and delivered by the Trust and each complies with all applicable provisions of the 1940 Act; assuming due authorization, execution and delivery by the other parties thereto, each Trust Agreement constitutes the valid and binding obligation of the Trust enforceable in accordance with its terms, except as rights to indemnity and contribution in the Underwriting Agreements and Trust Agreements may be limited by Federal or state securities laws, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
l. The Trust is duly registered under the 1940 Act as a closed-end non-diversified management investment company;
m. The provisions of the Declaration and By-Laws of the Trust and the investment policies and restrictions described in the Prospectus (including the Statement of Additional Information) under the captions "Investment Objectives and Policies" and "Miscellaneous Investment Practices" comply with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and
n. The portions of the proxy statement and all related materials distributed to holders of Common Shares of the Trust in connection with the shareholder meeting held on May 20, 1999, as adjourned to ________ __, 1999 (the "Shareholder Meeting"), and in connection with amending the Declaration to permit the issuance of preferred shares (the "Preferred Share Proxy Materials") did not, as of its date or the date of the Shareholder Meeting, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Preferred Share Proxy Materials complied as to form, as of its date and as of the date of the Shareholder Meeting, in all material respects with the provisions of the 1934 Act, the 1940 Act and the Rules and Regulations. Such counsel shall also have furnished to the Underwriter a statement, addressed to the Underwriter, dated the Closing Date, to the effect that such counsel has acted for the Trust in connection with the preparation of the Registration Statement, and based on the foregoing, while such counsel has not themselves independently verified the accuracy or completeness of or otherwise verified and is not passing upon and assumes no responsibility for the Registration Statement or the Prospectus (other than as set forth in (f), (g) and (m) above) in the course of their review of the Registration Statement and Prospectus and discussion of the contents of the Registration Statement and Prospectus with certain officers and employees of the Trust and its independent accountants, no facts have come to the attention of such counsel which would lead them to believe that the Registration Statement (excluding the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief), as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (except for the financial statements, including the notes and schedules thereto, or other financial data contained or referred to therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits 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. Such counsel may also state that they do not express any opinion concerning any law other than the law of the Commonwealth of Massachusetts and the federal law of the United States. 27 EXHIBIT B FORM OF OPINION OF GENERAL COUNSEL OF ADVISER The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the Advisor, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter and to the effect that:
a. The Adviser Advisor is a corporation duly incorporated and validly existing and in good standing under the laws of The Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus;
b. The Underwriting Agreement and the Management Agreement have been duly authorized, executed and delivered by the Advisor and each complies with all applicable provisions of the Advisers Act and the Management Agreement constitutes the valid and binding obligation of the Advisor enforceable in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
c. The Adviser Advisor is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus;
d. To the best of such counsel's knowledge after reasonable inquiry, there are no legal or governmental proceedings pending or threatened against the AdviserAdvisor, or to which the Adviser Advisor or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required;
e. To the best of such counsel's knowledge after reasonable inquiry, the Adviser Advisor is not in violation of its corporate charter or by-laws, nor is the Adviser Advisor in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body;
f. Neither the execution, delivery or performance of the Underwriting Agreement nor the consummation by the Adviser Advisor of the transactions contemplated hereby or thereby (A) requires the Adviser Advisor to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained prior to the date hereof and such as may be required for compliance with state securities or blue sky laws) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate of incorporation or by-laws, or other organizational 28 2 documents, of the Adviser Advisor or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any material agreement, indenture, lease or other instrument to which the Trust is a party or by which it or any of its properties may be bound (the "Agreements and Instruments") or any other Agreements and Instruments known to such counsel after due inquiry, (ii) violates or will violate any statute, law or regulation (assuming compliance with state securities and blue sky laws), (iii) violates or will violate any judgment, injunction, order or decree that is applicable to the Advisor or any of its properties and that is known to such counsel, or (iv) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of the Agreements and Instruments; and
g. The description of the Adviser Advisor in the Registration Statement and the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Colonial High Income Municipal Trust)
