Disclaimer of Liability of Trustees and Beneficiaries. A copy of the Agreement and Declaration of Trust of each of the Fund and the Adviser is on file with the Secretary of State of The Commonwealth of Massachusetts, and notice hereby is given that this Underwriting Agreement is executed on behalf of the Fund and the Adviser, respectively, by an officer or Trustee of the Fund or the Adviser, as the case may be, in his or her capacity as an officer or Trustee of the Fund or the Adviser, as the case may be, and not individually and that the obligations under or arising out of this Underwriting Agreement are not binding upon any of the Trustees, officers or shareholders individually but are binding only upon the assets and properties of the Fund or the Adviser, as the case may be. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Fund and the Advisers a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the Fund and the Advisers in accordance with its terms. Very truly yours, XXXXX XXXXX TAX-MANAGED GLOBAL DIVERSIFIED EQUITY INCOME FUND By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- XXXXX XXXXX MANAGEMENT By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- RAMPART INVESTMENT MANAGEMENT COMPANY, INC. By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- CONFIRMED AND ACCEPTED, as of the date first above written: WACHOVIA CAPITAL MARKETS, LLC CITIGROUP GLOBAL MARKETS INC. XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED XXXXXX XXXXXXX & CO. INCORPORATED UBS SECURITIES LLC X.X. XXXXXXX & SONS, INC. XXXXXX X. XXXXX & CO. BANC OF AMERICA SECURITIES LLC BB&T CAPITAL MARKETS, A DIVISION OF XXXXX & XXXXXXXXXXXX, INC. XXXXXXX, XXXXXX & CO. XXXXXX, XXXXX XXXXX, INCORPORATED H&R BLOCK FINANCIAL ADVISORS, INC. J.J.B. XXXXXXXX, X.X. XXXXX, INC. XXXXXX XXXXXXXXXX XXXXX LLC XXXXXXXXXXX & CO. INC. XXXXXXX XXXXX & ASSOCIATES, INC. RBC CAPITAL MARKETS CORPORATION XXXX XXXX & CO., INC. SOUTHWEST SECURITIES, INC. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED SUNTRUST CAPITAL MARKETS, INC. WEDBUSH XXXXXX SECURITIES INC. XXXXX FARGO SECURITIES, LLC By: WACHOVIA CAPITAL MARKETS, LLC By ---------------------------------- Authorized Signatory For themselves and as Representatives of the Underwriters named in Exhibit A hereto. EXHIBIT A Number of Initial Name of Underwriter Securities ------------------- ---------- Wachovia Capital Markets, LLC...................................... Citigroup Global Markets Inc. Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated __________ Xxxxxx Xxxxxxx & Co. Incorporated UBS Securities LLC __________ X.X. Xxxxxxx & Sons, Inc. __________ Xxxxxx X. Xxxxx & Co. Banc of America Securities LLC __________ BB&T Capital Markets, a division Of Xxxxx & Xxxxxxxxxxxx, Inc. __________ Xxxxxxx, Xxxxxx & Co. __________ Xxxxxx, Xxxxx Xxxxx, Incorporated __________ H&R Block Financial Advisors, Inc. __________ J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. __________ Xxxxxx Xxxxxxxxxx Xxxxx LLC __________ Xxxxxxxxxxx & Co. Inc. __________ Xxxxxxx Xxxxx & Associates, Inc. __________ RBC Capital Markets Corporation __________ Xxxx Xxxx & Co., Inc. __________ Southwest Securities, Inc. __________ Xxxxxx, Xxxxxxxx & Company, Incorporated __________ Suntrust Capital Markets, Inc. __________ Wedbush Xxxxxx Securities Inc. __________ Xxxxx Fargo Securities, LLC __________ Total __________ EXHIBIT B FORM OF OPINION OF FUND COUNSEL

Appears in 1 contract

Samples: Underwriting Agreement (Eaton Vance Tax-Managed Global Diversified Equity Income Fund)

Disclaimer of Liability of Trustees and Beneficiaries. A copy of the Agreement and Declaration of Trust of ~~each of~~ the Fund ~~and the Adviser~~ is on file with the Secretary of State of The Commonwealth of Massachusetts, and notice hereby is given that this Underwriting Agreement is executed on behalf of the Fund ~~and the Adviser, respectively,~~ by an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ in his or her capacity as an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ and not individually and that the obligations under or arising out of this Underwriting Agreement are not binding upon any of the Trustees, officers or shareholders individually but are binding only upon the assets and properties of the ~~Fund or the Adviser, as the case may be~~Fund. If the foregoing ~~is in accordance with your~~ correctly sets forth the understanding ~~of our agreement~~among the Fund, the Investment Manager and the Underwriters, please ~~sign and return to~~ so indicate in the ~~Fund and the Advisers a counterpart hereof~~space provided below, whereupon this ~~instrument, along with all counterparts, will become~~ letter and your acceptance shall constitute a binding agreement among the Fund, the Investment Manager and the Underwriters, ~~the Fund and the Advisers in accordance with its terms~~severally. Very truly yours, ~~XXXXX XXXXX TAX-MANAGED GLOBAL DIVERSIFIED EQUITY~~ PIMCO NEW YORK MUNICIPAL INCOME FUND By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- XXXXX XXXXX MANAGEMENT By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- RAMPART INVESTMENT MANAGEMENT COMPANY, INC. By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- CONFIRMED AND ACCEPTED, as of the date first above written: WACHOVIA CAPITAL MARKETS, LLC CITIGROUP GLOBAL MARKETS INC. XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED XXXXXX XXXXXXX & CO. INCORPORATED UBS SECURITIES LLC X.X. XXXXXXX & SONS, INC. XXXXXX X. XXXXX & CO. BANC OF AMERICA SECURITIES LLC BB&T CAPITAL MARKETS, A DIVISION OF XXXXX & XXXXXXXXXXXX, INC. XXXXXXX, XXXXXX & CO. XXXXXX, XXXXX XXXXX, INCORPORATED H&R BLOCK FINANCIAL ADVISORS, INC. J.J.B. XXXXXXXX, X.X. XXXXX, INC. XXXXXX XXXXXXXXXX XXXXX LLC XXXXXXXXXXX & CO. INC. XXXXXXX XXXXX & ASSOCIATES, INC. RBC CAPITAL MARKETS CORPORATION XXXX XXXX & CO., INC. SOUTHWEST SECURITIES, INC. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED SUNTRUST CAPITAL MARKETS, INC. WEDBUSH XXXXXX SECURITIES INC. XXXXX FARGO SECURITIES, LLC By: WACHOVIA CAPITAL MARKETS, LLC By ---------------------------------- Authorized Signatory For themselves and as Representatives of the Underwriters named in Exhibit A hereto. EXHIBIT A Number of Initial Name of Underwriter Securities ------------------- ---------- Wachovia Capital Markets, LLC...................................... Citigroup Global Markets Inc. Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated II __________________________ ~~Xxxxxx Xxxxxxx & Co. Incorporated UBS Securities~~ By: Title: PIMCO FUNDS ADVISORS LLC _________~~_ X.X. Xxxxxxx & Sons, Inc.~~ _________________ ~~Xxxxxx X. Xxxxx~~ By: Title: Accepted and agreed to as of the date first above written, on behalf of themselves and the other several Underwriters named in Schedule A UBS WARBURG LLC XXXXXXX LYNCH, PIERCE, XXXXXX & ~~Co. Banc of America Securities~~ XXXXX INCORPORATED X.X. XXXXXXX & SONS, INC. FIRST UNION SECURITIES, INC. PRUDENTIAL SECURITIES INCORPORATED QUICK & XXXXXX, INC. A FLEETBOSTON FINANCIAL COMPANY XXXXXXX XXXXX & ASSOCIATES, INC. RBC XXXX XXXXXXXX INCORPORATED ADVEST, INC. XXXXXXXXXX & CO. INC. By: UBS WARBURG LLC _________~~_ BB&T Capital Markets, a division Of Xxxxx & Xxxxxxxxxxxx, Inc.~~ ___________________ ~~Xxxxxxx, Xxxxxx & Co.~~ By: Xxxxx Xxxxxxxx Title: Managing Director ____________________________ By: Xxxx X. Xxxx Title: Executive Director SCHEDULE A Number of Shares Name to be Purchased ---- --------------- UBS Warburg [_______] Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx ~~Xxxxx~~Incorporated [_______] X.X. Xxxxxxx & Sons, Inc. [_______] First Union Securities [_______] Prudential Securities Incorporated [_______] Quick & Xxxxxx, Inc. A FleetBoston Financial Company [_______] Xxxxxxx Xxxxx & Associates, Inc. [_______] RBC Xxxx Xxxxxxxx Incorporated [_______] Advest, Inc. [_______] Xxxxxxxxxx & Co., Inc. [_______] Total [_______] SCHEDULE B FORM OF OPINION OF ROPES & XXXX REGARDING THE FUND June [___], 2002 UBS Warburg LLC Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated X.X. Xxxxxxx & Sons, Inc. First Union Securities, Inc. Prudential Securities Incorporated Quick & Xxxxxx, Inc. A FleetBoston Financial Company Xxxxxxx Xxxxx & Associates, Inc. RBC Xxxx Xxxxxxxx Incorporated Advest, Inc. Xxxxxxxxxx & Co. Inc. c/o UBS Warburg LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000-0000 Ladies and Gentlemen: We have acted as counsel to PIMCO New York Municipal Income Fund II (the "Fund") in connection with the proposed issuance of [ ] common shares of beneficial interest (the "Shares"). This opinion is furnished to you pursuant to Section 7(e) of the Underwriting Agreement dated as of June [___], 2002 (the "Underwriting Agreement") among the Fund, PIMCO Funds Advisors LLC (the "Investment Manager") and UBS Warburg LLC, CIBC World Markets Corp., X.X. Xxxxxxx & Sons, Inc., and Advest, Inc. as representatives of the underwriters listed on Schedule A thereto (the "Underwriters"). Capitalized terms used in this opinion, unless otherwise defined, have the meanings specified in the Underwriting Agreement. We have examined signed copies of the Registration Statement of the Fund on Form N-2 (File No. 333-86284) under the Securities Act of 1933, as amended (the "Securities Act") (which also constitutes the Fund's Registration Statement on Form N-2 (File No. 811-21078) under the Investment Company Act of 1940, as amended (the "Investment Company Act")), including all exhibits thereto, as filed with the Securities and Exchange Commission (the "Commission") on April 15, 2002 (the "Original Registration Statement"), Pre-Effective Amendment No. 1 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on May 29, 2002 ("Pre-Effective Amendment No. 1"), Pre-Effective Amendment No. 2 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on June [___], 2002 ("Pre-Effective Amendment No. 2") and Pre-Effective Amendment No. 3 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on June [___], 2002 ("Pre-Effective Amendment No. 3," and together with Pre-Effective Amendment No. 1, Pre-Effective Amendment No. 2 and the Original Registration Statement, the "Registration Statement"); the Fund's Notification of Registration on Form N-8A under the Investment Company Act, as filed with the Commission on April 15, 2002 (the "Notification of Registration"); the Fund's Registration Statement on Form 8-A under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as filed with the Commission on June [___], 2002 (the "Exchange Act Registration Statement"); the Fund's Agreement and Declaration of Trust, as amended to the date hereof (the "Declaration of Trust"), on file in the offices of the Secretary of State of The Commonwealth of Massachusetts and the Clerk of the City of Boston; the By-laws of the Fund, as amended to the date hereof (the "By-laws"); a copy of the Prospectus dated June [___], 2002, relating to the Shares and the Statement of Additional Information of the Fund dated June [___], 2002, each as filed with the Commission pursuant to Rule 497 under the Securities Act on June [___], 2002 (together, the "Prospectus"); the Investment Management Agreement dated as of June [___], 2002, between the Fund and the Investment Manager (the "Investment Management Agreement"); the Portfolio Management Agreement dated as of June [___], 2002, between Pacific Investment Management Company LLC (the "Portfolio Manager") and the Investment Manager (the "Portfolio Management Agreement"); the Custodian Agreement dated as of June [___], 2002, between the Fund and State Street Bank and Trust Company (the "Custodian Agreement") and the Transfer Agency Services Agreement dated as of June [___], 2002, between the Fund and PFPC Inc. (the "Transfer Agency Agreement," and together with the Custodian Agreement, the "Fund Agreements"); the Terms and Conditions of the Fund's Dividend Reinvestment Plan; and the Underwriting Agreement. Additionally, we have relied upon the oral representation of Mr. Xxxxx X'Xxxxxx of the Commission staff to the effect that the Registration Statement and the Exchange Act Registration Statement became effective as of [___ a.m./p.m.] on June [___], 2002; a letter dated June [___], 2002, from Xx. Xxxxxxxxx Xxxxxx, Executive Vice President of the New York Stock Exchange, authorizing the Shares for listing on such Exchange; and the oral representation by the [_________~~_ H&R Block Financial Advisors~~] of the Commission [staff] that as of [ ] [a.m.], ~~Inc. __________ J.J.B. Xxxxxxxx~~no stop order suspending the effectiveness of the Registration Statement had been issued and no proceeding for any such purpose was pending or threatened. We have also examined and relied upon the original or copies of minutes of the meetings or written consents of the sole shareholder and the Board of Trustees of the Fund, ~~X.X. Xxxxx~~the documents delivered to the Underwriters by the Fund and the Investment Manager dated as of the date hereof pursuant to the Underwriting Agreement and such other documents, ~~Inc. __________ Xxxxxx Xxxxxxxxxx Xxxxx LLC __________ Xxxxxxxxxxx & Co. Inc. __________ Xxxxxxx Xxxxx & Associates~~including certificates of officers of the Fund and certificates of the Secretary of State of the State of New York as to the qualification and good standing of the Fund as a foreign entity in New York and the Secretary of State of the State of California as to the qualification and good standing of the Fund as a foreign entity in California, ~~Inc. __________ RBC Capital Markets Corporation __________ Xxxx Xxxx & Co.~~as we have deemed necessary for purposes of rendering our opinions below. We have assumed the genuineness of the signatures on all documents examined by us, ~~Inc. __________ Southwest Securities~~the authenticity of all documents submitted to us as originals and the conformity to the corresponding originals of all documents submitted to us as copies. We express no opinion as to the laws of any jurisdiction other than The Commonwealth of Massachusetts and the United States of America. We call your attention to the fact that the Underwriting Agreement provides that it is to be governed by and construed in accordance with the laws of the State of New York and the Transfer Agency Agreement provides that it is to be governed by and construed in accordance with the laws of the State of Delaware, ~~Inc. __________ Xxxxxx~~and to the fact that the Investment Management Agreement does not provide that it is to be governed by the laws of any particular jurisdiction. In rendering the opinion as to enforceability expressed in paragraph [5] below, ~~Xxxxxxxx & Company~~we have limited the scope of our opinion to the conclusions that would be reached by a Massachusetts court that had determined that each of the Underwriting Agreement, ~~Incorporated __________ Suntrust Capital Markets~~the Investment Management Agreement and the Fund Agreements would be governed by, ~~Inc. __________ Wedbush Xxxxxx Securities Inc. __________ Xxxxx Fargo Securities~~and construed in accordance with, ~~LLC __________ Total __________ EXHIBIT B FORM OF OPINION OF FUND COUNSEL~~the internal laws of The Commonwealth of Massachusetts. Further, we express no opinion as to the state securities or Blue Sky laws of any jurisdiction, including The Commonwealth of Massachusetts. For purposes of our opinion set forth in paragraph [2] below with respect to the power and authority of the Fund to own, lease and operate its properties and conduct its business, we have relied upon certificates of officers of the Fund as to the states in which the Fund leases or owns real property or in which it conducts material operations. Insofar as this opinion relates to factual matters, we have made inquiries to officers of the Fund, the Investment Manager and the Portfolio Manager to the extent we believe reasonable with respect to such matters and have relied upon representations made by the Fund and the Investment Manager in the Underwriting Agreement, representations made by the Portfolio Manager to the Investment Manager and representations made to us by one or more officers of the Fund, the Investment Manager or the Portfolio Manager. We have not independently verified the accuracy of such representations. In respect of our opinions set forth in paragraphs [7], [9] and [11] below, we have not searched the dockets of any court, administrative body or other filing office in any jurisdiction. Based upon and subject to the foregoing, we are of the opinion that:

Appears in 1 contract

Samples: Underwriting Agreement (Pimco New York Municipal Income Fund Ii)

Disclaimer of Liability of Trustees and Beneficiaries. A copy of the Agreement and Declaration of Trust of ~~each of~~ the Fund ~~and the Adviser~~ is on file with the Secretary of State of The Commonwealth of Massachusetts, and notice hereby is given that this Underwriting Agreement is executed on behalf of the Fund ~~and the Adviser, respectively,~~ by an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ in his or her capacity as an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ and not individually and that the obligations under or arising out of this Underwriting Agreement are not binding upon any of the Trustees, officers or shareholders individually but are binding only upon the assets and properties of the ~~Fund or the Adviser, as the case may be~~Fund. If the foregoing ~~is in accordance with your~~ correctly sets forth the understanding ~~of our agreement~~among the Fund, the Investment Manager and the Underwriters, please ~~sign and return to~~ so indicate in the ~~Fund and the Advisers a counterpart hereof~~space provided below, whereupon this ~~instrument, along with all counterparts, will become~~ letter and your acceptance shall constitute a binding agreement among the Fund, the Investment Manager and the Underwriters, ~~the Fund and the Advisers in accordance with its terms~~severally. Very truly yours, ~~XXXXX XXXXX TAX~~XXXXXXXX-~~MANAGED GLOBAL DIVERSIFIED EQUITY~~ XXXXXXXXX CONVERTIBLE & INCOME FUND By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- XXXXX XXXXX MANAGEMENT By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- RAMPART INVESTMENT MANAGEMENT COMPANY, INC. By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- CONFIRMED AND ACCEPTED, as of the date first above written: WACHOVIA CAPITAL MARKETS, LLC CITIGROUP GLOBAL MARKETS INC. XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED XXXXXX XXXXXXX & CO. INCORPORATED UBS SECURITIES LLC X.X. XXXXXXX & SONS, INC. XXXXXX X. XXXXX & CO. BANC OF AMERICA SECURITIES LLC BB&T CAPITAL MARKETS, A DIVISION OF XXXXX & XXXXXXXXXXXX, INC. XXXXXXX, XXXXXX & CO. XXXXXX, XXXXX XXXXX, INCORPORATED H&R BLOCK FINANCIAL ADVISORS, INC. J.J.B. XXXXXXXX, X.X. XXXXX, INC. XXXXXX XXXXXXXXXX XXXXX LLC XXXXXXXXXXX & CO. INC. XXXXXXX XXXXX & ASSOCIATES, INC. RBC CAPITAL MARKETS CORPORATION XXXX XXXX & CO., INC. SOUTHWEST SECURITIES, INC. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED SUNTRUST CAPITAL MARKETS, INC. WEDBUSH XXXXXX SECURITIES INC. XXXXX FARGO SECURITIES, LLC By: WACHOVIA CAPITAL MARKETS, LLC By ---------------------------------- Authorized Signatory For themselves and as Representatives of the Underwriters named in Exhibit A hereto. EXHIBIT A Number of Initial Name of Underwriter Securities ------------------- ---------- Wachovia Capital Markets, LLC...................................... Citigroup Global Markets Inc. Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated II __________________________ ~~Xxxxxx Xxxxxxx & Co. Incorporated~~ By: Title: PIMCO ADVISORS FUND MANAGEMENT LLC __________________________ By: Title: Accepted and agreed to as of the date first above written, on behalf of themselves and the other several Underwriters named in Schedule A UBS Securities LLC By: UBS Securities LLC _________~~_ X.X. Xxxxxxx & Sons, Inc.~~ _________________ ~~Xxxxxx~~ By: Xxxx X. ~~Xxxxx & Co. Banc of America Securities LLC~~ Reit Title: Executive Director __________________________ ~~BB&T~~ By: Xxxx X. Key Title: Director SCHEDULE A ------------------------------------------------------------------------------- Number of Shares Name to be Purchased ---- --------------- ------------------------------------------------------------------------------- UBS Securities LLC [ ] ------------------------------------------------------------------------------- Citigroup Global Markets Inc [ ] ------------------------------------------------------------------------------- Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated [ ] ------------------------------------------------------------------------------- Prudential Securities Incorporated [ ] ------------------------------------------------------------------------------- Wachovia Capital Markets, ~~a division Of~~ LLC [ ] ------------------------------------------------------------------------------- Xxxx Xxxxx ~~& Xxxxxxxxxxxx, Inc. __________ Xxxxxxx, Xxxxxx & Co. __________~~ Xxxx Xxxxxx, ~~Xxxxx Xxxxx,~~ Incorporated __________ H&R Block Financial Advisors, Inc. __________ J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. __________ Xxxxxx Xxxxxxxxxx Xxxxx LLC __________ Xxxxxxxxxxx & Co. Inc. __________ Xxxxxxx Xxxxx & Associates, Inc. __________ [ ] ------------------------------------------------------------------------------- RBC ~~Capital Markets Corporation __________~~ Xxxx ~~Xxxx & Co., Inc. __________ Southwest Securities, Inc. __________ Xxxxxx,~~ Xxxxxxxx ~~& Company,~~ Incorporated ~~__________ Suntrust Capital Markets, Inc. __________ Wedbush Xxxxxx Securities Inc. __________~~ [ ] ------------------------------------------------------------------------------- Xxxxx Fargo Securities, LLC ~~__________ Total __________ EXHIBIT~~ [ ] ------------------------------------------------------------------------------- Advest, Inc [ ] ------------------------------------------------------------------------------- Xxxxxxxxxx & Co. Inc [ ] ------------------------------------------------------------------------------- Xxxxxx Xxxxxxxxxx Xxxxx LLC [ ] ------------------------------------------------------------------------------- McDonald Investments Inc., a KeyCorp Company [ ] ------------------------------------------------------------------------------- Quick & Xxxxxx, Inc., a FleetBoston Financial Company [ ] ------------------------------------------------------------------------------- Wedbush Xxxxxx Securities Inc. [ ] ------------------------------------------------------------------------------- TOTAL [ ] ------------------------------------------------------------------------------- SCHEDULE B FORM OF OPINION OF ROPES & XXXX LLP REGARDING THE FUND ~~COUNSEL~~[ ], 2003 UBS Securities LLC [ ] as Managing Underwriters c/o UBS Securities LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000-0000 Ladies and Gentlemen: We have acted as counsel to Xxxxxxxx-Xxxxxxxxx Convertible & Income Fund II (the "Fund") in connection with the proposed issuance of [ ] common shares of beneficial interest, with a par value of $0.00001 per share (the "Shares"). This opinion is furnished to you pursuant to Section 6(e) of the Underwriting Agreement dated as of [ ], 2003 (the "Underwriting Agreement") among the Fund, PIMCO Advisors Fund Management LLC (formerly, PIMCO Funds Advisors LLC) (the "Investment Manager") and UBS Securities LLC, and [ ], as representatives of the underwriters listed on Schedule A thereto (the "Underwriters"). Capitalized terms used in this opinion, unless otherwise defined, have the meanings specified in the Underwriting Agreement. We have examined signed copies of the registration statement of the Fund on Form N-2 (File No. 333-104708) under the Securities Act of 1933, as amended (the "Securities Act"), and under the Investment Company Act of 1940, as amended (the "Investment Company Act"), including all exhibits thereto, as filed with the Securities and Exchange Commission (the "Commission") on April 23, 2003 (the "Original Registration Statement"), Pre-Effective Amendment No. 1 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on June 9, 2003 ("Pre-Effective Amendment No. 1"), Pre-Effective Amendment No. 2 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on [ ], 2003 ("Pre-Effective Amendment No. 2"), Pre-Effective Amendment No. 3 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on [ ], 2003 ("Pre-Effective Amendment No. 3"), and Pre-Effective Amendment No. 4 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on [ ], 2003 ("Pre-Effective Amendment No. 4," and, together with the Original Registration Statement, Pre-Effective Amendment No. 1, Pre-Effective Amendment No. 2 and Pre-Effective Amendment No. 3, the "Registration Statement"); the Fund's Notification of Registration on Form N-8A (File No. 811-21338) under the Investment Company Act, as filed with the Commission on April 23, 2003 (the "Notification of Registration"); the Fund's Registration Statement on Form 8-A under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as filed with the Commission on [ ], 2003 (the "Exchange Act Registration Statement"); the Fund's Agreement and Declaration of Trust, as amended and restated to the date hereof (the "Declaration of Trust"), on file in the offices of the Secretary of State of The Commonwealth of Massachusetts and the Clerk of the City of Boston; the By-laws of the Fund, as amended and restated to the date hereof (the "By-laws"); a copy of the Prospectus dated [ ], 2003, relating to the Shares and the Statement of Additional Information of the Fund dated [ ], 2003, each as filed with the Commission pursuant to Rule 497 under the Securities Act on [ ], 2003 (together, the "Prospectus"); the Investment Management Agreement dated as of [ ], 2003, between the Fund and the Investment Manager (the "Investment Management Agreement"); the Portfolio Management Agreement dated as of [ ], 2003, between Xxxxxxxx-Xxxxxxxxx Capital Management LLC (the "Portfolio Manager") and the Investment Manager (the "Portfolio Management Agreement"), as agreed to and accepted by the Fund; the Custodian Agreement dated as of [ ], 2003, between the Fund and Xxxxx Brothers Xxxxxxxx & Co. (the "Custodian Agreement"); [the Accounting Agency Agreement dated as of [ ], 2003, between the Fund and [Xxxxx Brothers Xxxxxxxx & Co.] (the "Accounting Agency Agreement")]; and the Transfer Agency Services Agreement dated as of [ ], 2003, between the Fund and PFPC Inc. (the "Transfer Agency Agreement," and, together with the Custodian Agreement and the [Accounting Agency Agreement], the "Fund Agreements"); the Terms and Conditions of the Fund's Dividend Reinvestment Plan (the "Dividend Reinvestment Plan"); and the Underwriting Agreement. Additionally, we have relied upon the oral representation of [ ] of the Commission staff to the effect that the Registration Statement became effective as of [ ] on [ ], 2003; a letter dated [ ], 2003, from Xx. Xxxxxx Xxxxxxx, Executive Vice President of the New York Stock Exchange, authorizing the Shares for listing on such Exchange; and the oral representation by a member of the Commission staff on the date hereof that as of [ ], no stop order suspending the effectiveness of the Registration Statement had been issued and no proceeding for any such purpose was pending or threatened. We have also examined and relied upon the original or copies of written consents of shareholders and the Board of Trustees of the Fund and copies of resolutions of the Board of Trustees of the Fund certified by the Secretary of the Fund, the documents delivered to the Underwriters by the Fund and the Investment Manager dated as of the date hereof pursuant to the Underwriting Agreement and such other documents, including certificates of officers and Trustees of the Fund, as we have deemed necessary for purposes of rendering our opinions below. For purposes of paragraph 2 below, we have relied solely on (1) the certificate of recent date of the Secretary of State of the State of California as to the entitlement of the Fund to transact intrastate business in the State of California, (2) a Certificate of the Special Deputy Secretary of State of the State of New York dated [ ], 2003, certifying copies of (a) a Certificate of Designation by the Fund dated [ ], 2003 and (b) a Statement under Section 18 of the New York General Associations Law, (3) a Filing Receipt of the Department of State of the State of New York dated [ ], 2003 relating to the Fund and (4) a LEXIS search on [ ] of the New York Department of State, Corporate Record, showing the "status" of the Fund as "active" and noting that "good standing status can only be determined by performing a search in the records of both the Department of State Corporation Records and the Department of Tax and Franchise." We have assumed the genuineness of the signatures on all documents examined by us, the authenticity of all documents submitted to us as originals and the conformity to the corresponding originals of all documents submitted to us as copies. For purposes of our opinions regarding the effectiveness of the Registration Statement and the Exchange Act Registration Statement, we are relying solely on the oral representations of the Commission staff. We express no opinion as to the laws of any jurisdiction other than The Commonwealth of Massachusetts and the United States of America. We call your attention to the fact that the Underwriting Agreement provides that it is to be governed by and construed in accordance with the laws of the State of New York and the Transfer Agency Agreement provides that it is to be governed by and construed in accordance with the laws of the State of Delaware, and to the fact that the Investment Management Agreement does not provide that it is to be governed by the laws of any particular jurisdiction. In rendering the opinion as to enforceability expressed in paragraph 5 below, we have limited the scope of our opinion to the conclusions that would be reached by a Massachusetts court that had determined that each of the Fund Agreements would be governed by, and construed in accordance with, the internal laws of The Commonwealth of Massachusetts. Further, we express no opinion as to the state securities or Blue Sky laws of any jurisdiction, including The Commonwealth of Massachusetts. For purposes of our opinion set forth in paragraph 2 below with respect to the power and authority of the Fund to own, lease and operate its properties and conduct its business, we have relied upon certificates of officers of the Fund as to the states in which the Fund leases or owns real property or in which it conducts material operations. Insofar as this opinion relates to factual matters, we have also made inquiries to officers of the Fund, the Investment Manager and the Portfolio Manager to the extent we believe reasonable with respect to such matters and have relied inter alia upon representations made by the Fund and the Investment Manager in the Underwriting Agreement, representations made by the Portfolio Manager to the Investment Manager and representations made to us by one or more officers of the Fund, the Investment Manager or the Portfolio Manager. We have not independently verified the accuracy of such representations. Where our opinion relates to our "knowledge," that term means the conscious awareness of facts or other information by any lawyer in our firm giving substantive attention to the representation of the Fund with respect to the transactions contemplated by the Underwriting Agreement, and does not require or imply (i) any examination of this firm's, any such lawyer's or any other person's or entity's files, or (ii) that any inquiry was made of any lawyer (other than the lawyers described above). In respect of our opinions set forth in paragraphs 7, 9 and 11 below, we have not searched the dockets of any court, administrative body or other filing office in any jurisdiction. Based upon and subject to the foregoing, we are of the opinion that:

Appears in 1 contract

Samples: Underwriting Agreement (Nicholas Applegate Convertible & Income Fund Ii)

Disclaimer of Liability of Trustees and Beneficiaries. A copy of the ~~Agreement and~~ Declaration of Trust of ~~each of~~ the Fund ~~and the Adviser~~ is on file with the Secretary of State of The Commonwealth of Massachusetts, and notice hereby is given that this ~~Underwriting~~ Agreement is executed on behalf of the Fund ~~and the Adviser, respectively,~~ by an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ in his or her capacity as an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ and not individually and that the obligations under or arising out of this ~~Underwriting~~ Agreement are not binding upon any of the Trustees, officers or shareholders individually but are binding only upon the assets and properties of the Fund or the Adviser, as the case may be. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Fund and the Advisers a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the Fund and the Advisers in accordance with its termsFund. Very truly yours, ~~XXXXX XXXXX TAX-MANAGED GLOBAL DIVERSIFIED EQUITY~~ FIRST TRUST ENERGY INCOME AND GROWTH FUND ~~By ------------------------------------~~ By: /s/ Xxxx X. Xxxxxxx ----------------------------------- Name: ~~----------------------------------~~ Xxxx X. Xxxxxxx Title: ~~--------------------------------- XXXXX XXXXX MANAGEMENT By ------------------------------------~~ President and Chief Executive Officer FIRST TRUST ADVISORS L.P. By: /s/ Xxxx X. Xxxxxxx ----------------------------------- Name: ~~----------------------------------~~ Xxxx X. Xxxxxxx Title: ~~--------------------------------- RAMPART INVESTMENT MANAGEMENT COMPANY~~Chief Financial Officer and Chief Operating Officer ENERGY INCOME PARTNERS, ~~INC. By ------------------------------------~~ LLC By: /s/ Xxx Xxx ----------------------------------- Name: ~~----------------------------------~~ Xxx Xxx Title: ~~--------------------------------- CONFIRMED AND ACCEPTED~~Member, Vice President and Secretary [Signature page to Underwriting Agreement] Accepted as of the date ~~first above written: WACHOVIA CAPITAL MARKETS~~hereof Xxxxxx Xxxxxxx & Co. LLC Citigroup Global Markets Inc. RBC Capital Markets, LLC ~~CITIGROUP GLOBAL MARKETS INC. XXXXXXX LYNCH, XXXXXX, XXXXXX~~ Acting severally on behalf of themselves and the several Underwriters named in Schedule I hereto By: Xxxxxx Xxxxxxx & ~~XXXXX INCORPORATED XXXXXX XXXXXXX & CO. INCORPORATED UBS SECURITIES~~ Co. LLC X.X. XXXXXXX & SONS, INC. XXXXXX X. XXXXX & CO. BANC OF AMERICA SECURITIES LLC BB&T CAPITAL MARKETS, A DIVISION OF XXXXX & XXXXXXXXXXXX, INC. XXXXXXX, XXXXXX & CO. XXXXXX, XXXXX XXXXX, INCORPORATED H&R BLOCK FINANCIAL ADVISORS, INC. J.J.B. XXXXXXXX, X.X. XXXXX, INC. XXXXXX XXXXXXXXXX XXXXX LLC XXXXXXXXXXX & CO. INC. XXXXXXX XXXXX & ASSOCIATES, INC. By: /s/ Xxx Xxxxxxxxx -------------------------------------------- Name: Xxx Xxxxxxxxx Title: Vice President [By: Citigroup Global Markets Inc. By: /s/ Xxxxx Xxxxxxx -------------------------------------------- Name: Xxxxx Xxxxxxx Title: Managing Director By: RBC CAPITAL MARKETS CORPORATION XXXX XXXX & CO., INC. SOUTHWEST SECURITIES, INC. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED SUNTRUST CAPITAL MARKETS, INC. WEDBUSH XXXXXX SECURITIES INC. XXXXX FARGO SECURITIESCapital Markets, LLC By: WACHOVIA CAPITAL MARKETS, LLC By ---------------------------------- Authorized Signatory For themselves and as Representatives of the Underwriters named in Exhibit A hereto. EXHIBIT A Number of Initial Name of Underwriter Securities ------------------- ---------- Wachovia /s/ Xxxxxxxx Xxxxxx -------------------------------------------- Name: Xxxxxxxx Xxxxxx Title: Director [Signature page to Underwriting Agreement] SCHEDULE I NUMBER OF FIRM SHARES TO BE UNDERWRITER PURCHASED Xxxxxx Xxxxxxx & Co. LLC................................... 780,000 Citigroup Global Markets Inc............................... 780,000 RBC Capital Markets, LLC~~...................................... Citigroup Global Markets Inc. Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated __________ Xxxxxx Xxxxxxx~~ ................................... 360,000 Xxxxxxxxxxx & Co. ~~Incorporated UBS Securities LLC __________ X.X. Xxxxxxx & Sons, Inc. __________~~ Inc...................................... 240,000 Xxxxxx X. Xxxxx & Co. ~~Banc of America Securities LLC __________ BB&T Capital Markets, a division Of Xxxxx & Xxxxxxxxxxxx, Inc. __________ Xxxxxxx, Xxxxxx & Co. __________ Xxxxxx, Xxxxx Xxxxx,~~ Incorporated __________ H&R Block Financial Advisors, Inc. __________ J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. __________ Xxxxxx Xxxxxxxxxx Xxxxx LLC __________ Xxxxxxxxxxx & Co. Inc. __________ Xxxxxxx Xxxxx & Associates, Inc. __________ RBC Capital Markets Corporation __________ Xxxx Xxxx & Co., Inc. __________ Southwest Securities, Inc. __________ Xxxxxx, Xxxxxxxx & Company, Incorporated __________ Suntrust Capital Markets, Inc. __________ Wedbush Xxxxxx Securities Inc. __________ Xxxxx Fargo Securities, LLC __________ Total __________ EXHIBIT B FORM OF OPINION OF FUND COUNSEL........................ 240,000 --------------- Total:............................................ 2,400,000 =============== SCHEDULE II OMITTING PROSPECTUSES

Appears in 1 contract

Samples: Underwriting Agreement (First Trust Energy Income & Growth Fund)

Disclaimer of Liability of Trustees and Beneficiaries. A copy of the ~~Agreement and~~ Declaration of Trust ~~of each of the Fund and the Adviser~~ is on file with the Secretary of State of The Commonwealth of Massachusetts, and notice hereby is given that this Underwriting Agreement is executed on behalf of the Fund ~~and the Adviser, respectively,~~ by an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ in his or her capacity as an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ and not individually and that the obligations under or arising out of this Underwriting Agreement are not binding upon any of the Trustees, officers or shareholders individually but are binding only upon the assets and properties of the ~~Fund or the Adviser, as the case may be~~Fund. If the foregoing ~~is in accordance with your~~ correctly sets forth the understanding ~~of our agreement~~among the Fund, the Investment Manager and the Underwriters, please ~~sign and return to~~ so indicate in the ~~Fund and the Advisers a counterpart hereof~~space provided below, whereupon this ~~instrument, along with all counterparts, will become~~ letter and your acceptance shall constitute a binding agreement among the Fund, the Investment Manager and the Underwriters, ~~the Fund and the Advisers in accordance with its terms~~severally. Very truly yours, ~~XXXXX XXXXX TAX-MANAGED GLOBAL DIVERSIFIED EQUITY~~ PIMCO MUNICIPAL INCOME FUND By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- XXXXX XXXXX MANAGEMENT By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- RAMPART INVESTMENT MANAGEMENT COMPANY, INC. By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- CONFIRMED AND ACCEPTED, as of the date first above written: WACHOVIA CAPITAL MARKETS, LLC CITIGROUP GLOBAL MARKETS INC. XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED XXXXXX XXXXXXX & CO. INCORPORATED UBS SECURITIES LLC X.X. XXXXXXX & SONS, INC. XXXXXX X. XXXXX & CO. BANC OF AMERICA SECURITIES LLC BB&T CAPITAL MARKETS, A DIVISION OF XXXXX & XXXXXXXXXXXX, INC. XXXXXXX, XXXXXX & CO. XXXXXX, XXXXX XXXXX, INCORPORATED H&R BLOCK FINANCIAL ADVISORS, INC. J.J.B. XXXXXXXX, X.X. XXXXX, INC. XXXXXX XXXXXXXXXX XXXXX LLC XXXXXXXXXXX & CO. INC. XXXXXXX XXXXX & ASSOCIATES, INC. RBC CAPITAL MARKETS CORPORATION XXXX XXXX & CO., INC. SOUTHWEST SECURITIES, INC. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED SUNTRUST CAPITAL MARKETS, INC. WEDBUSH XXXXXX SECURITIES INC. XXXXX FARGO SECURITIES, LLC By: WACHOVIA CAPITAL MARKETS, LLC By ---------------------------------- Authorized Signatory For themselves and as Representatives of the Underwriters named in Exhibit A hereto. EXHIBIT A Number of Initial Name of Underwriter Securities ------------------- ---------- Wachovia Capital Markets, LLC...................................... Citigroup Global Markets Inc. Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated __________________________ ~~Xxxxxx Xxxxxxx~~ By: Title: PIMCO ADVISORS L.P. __________________________ By: Title: Accepted and agreed to as of the date first above written, on behalf of themselves and the other several Underwriters named in Schedule A UBS WARBURG LLC X.X. XXXXXXX & ~~Co. Incorporated~~ SONS, INC. XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED By: UBS ~~Securities~~ WARBURG LLC _________~~_ X.X. Xxxxxxx & Sons, Inc.~~ _________________ ~~Xxxxxx X.~~ By: Xxxxx ~~& Co. Banc of America Securities LLC~~ Xxxxxxxx Title: Managing Director __________________________ ~~BB&T Capital Markets, a division Of Xxxxx~~ By: Xxxx X. Reit Title: Executive Director SCHEDULE A Number of Shares Name to be Purchased ---- --------------- UBS Warburg X.X. Xxxxxxx & ~~Xxxxxxxxxxxx~~Sons, Inc. ~~__________ Xxxxxxx~~Xxxxxxx Lynch, Pierce, Xxxxxx & ~~Co. __________ Xxxxxx,~~ Xxxxx ~~Xxxxx,~~ Incorporated __________ H&R Block Financial Advisors, Inc. __________ J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. __________ Xxxxxx Xxxxxxxxxx Xxxxx LLC __________ Xxxxxxxxxxx & Co. Inc. __________ Xxxxxxx Xxxxx & Associates, Inc. __________ RBC Capital Markets Corporation __________ Xxxx Xxxx & Co., Inc. __________ Southwest Securities, Inc. __________ Xxxxxx, Xxxxxxxx & Company, Incorporated __________ Suntrust Capital Markets, Inc. __________ Wedbush Xxxxxx Securities Inc. __________ Xxxxx Fargo Securities, LLC __________ Total ~~__________ EXHIBIT~~ SCHEDULE B FORM OF OPINION OF ROPES & XXXX REGARDING THE FUND ~~COUNSEL~~August , 2001 UBS Warburg LLC X.X. Xxxxxxx & Sons, Inc. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated c/o UBS Warburg LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000-0000 Ladies and Gentlemen: We have acted as counsel to PIMCO Municipal Income Fund (the "Fund") in connection with the proposed issuance 1,600 Auction Preferred Shares, Series A, 1,600 Auction Preferred Shares, Series B, 1,600 Auction Preferred Shares, Series C, 1,600 Auction Preferred Shares, Series D, and 1,600 Auction Preferred Shares, Series E (together, the "Preferred Shares"). This opinion is furnished to you pursuant to Section 6(e) of the Underwriting Agreement dated as of August , 2001 (the "Underwriting Agreement") among the Fund, PIMCO Advisors L.P. (the "Investment Manager") and UBS Warburg LLC, X.X. Xxxxxxx & Sons, Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as representatives of the underwriters listed on Schedule A thereto (the "Underwriters"). Capitalized terms used in this opinion, unless otherwise defined, have the meanings specified in the Underwriting Agreement. We have examined signed copies of the registration statement of the Fund on Form N-2 (File No. 333-64796) under the Securities Act of 1933, as amended (the "Securities Act") (which also constitutes Amendment No. 5 to the Fund's Registration Statement on Form N-2 (File No. 811-10377) under the Investment Company Act of 1940, as amended (the "Investment Company Act")), including all exhibits thereto, as filed with the Securities and Exchange Commission (the "Commission") on July 9, 2001 (the "Original Registration Statement"), Pre- Effective Amendment No. 1 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on August 14, 2001 ("Pre- Effective Amendment No. 1") and Pre-Effective Amendment No. 2 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on August , 2001 ("Pre-Effective Amendment No. 2," and together with Pre-Effective Amendment No. 1 and the Original Registration Statement, the "Registration Statement"); the Fund's Agreement and Declaration of Trust, as amended to the date hereof (the "Declaration of Trust"), on file in the offices of the Secretary of State of The Commonwealth of Massachusetts and the Clerk of the City of Boston; the Amended and Restated Bylaws of the Fund, as amended to the date hereof (the "Amended Bylaws"); a copy of the Prospectus dated August , 2001, relating to the Preferred Shares and the Statement of Additional Information of the Fund dated August , 2001, each as filed with the Commission pursuant to Rule 497 under the Securities Act on August , 2001 (together, the "Prospectus"); the Investment Management Agreement dated as of June 20, 2001, between the Fund and the Investment Manager (the "Investment Management Agreement"); the Portfolio Management Agreement dated as of June 20, 2001, between Pacific Investment Management Company LLC (the "Portfolio Manager") and the Investment Manager (the "Portfolio Management Agreement"), as agreed to and accepted by the Fund; the Custodian Agreement dated as of June 29, 2001, between the Fund and State Street Bank and Trust Company (the "Custodian Agreement"); the Auction Agency Agreement dated as of August , 2001, as supplemented by the acceptance letter dated as of the date hereof between between the Fund and Bankers Trust Company (the "Auction Agency Agreement," and together with the Custodian Agreement, the "Fund Agreements"); and the Underwriting Agreement. Additionally, we have relied upon the Order of the Commission pursuant to Section 8(a) of the Securities Act, declaring the Registration Statement effective as of p.m. on August , 2001, and the oral representation by a member of the Commission staff on the date hereof that as of a.m., no stop order suspending the effectiveness of the Registration Statement had been issued and no proceeding for any such purpose was pending or threatened. We have also examined and relied upon the original or copies of minutes of the meetings or written consents of the sole shareholder and the Board of Trustees of the Fund, the documents delivered to the Underwriters by the Fund and the Investment Manager dated as of the date hereof pursuant to the Underwriting Agreement and such other documents, including certificates of officers of the Fund, as we have deemed necessary for purposes of rendering our opinions below. For purposes of paragraph 2 below, we have relied solely on (1) the certificate dated as of August , 2001, of the Secretary of State of the State of California as to the entitlement of the Fund to transact intrastate business in the State of California and (2) a Certificate of the Special Deputy Secretary of State of the State of New York dated June 21, 2001, certifying copies of (a) a Certificate of Designation by the Fund dated June 11, 2001 and (b) a Statement under Section 18 of the New York General Associations Law, (3) a Filing Receipt of the Department of State of the State of New York dated June 21, 2001 relating to the Fund and (4) a LEXIS search on August , 2001, of the New York Department of State, Corporate Record, showing the "status" of the Fund as "active" and noting that "good standing status can only be determined by performing a search in the records of both the Department of State Corporation Records and the Department of Tax and Franchise." We have assumed the genuineness of the signatures on all documents examined by us, the authenticity of all documents submitted to us as originals and the conformity to the corresponding originals of all documents submitted to us as copies. We express no opinion as to the laws of any jurisdiction other than The Commonwealth of Massachusetts and the United States of America. We call your attention to the fact that each of the Underwriting Agreement, the Auction Agency Agreement and the Broker-Dealer Agreement provides that it is to be governed by and construed in accordance with the laws of the State of New York. In rendering the opinion as to enforceability expressed in paragraph 5 below, we have limited the scope of our opinion to the conclusions that would be reached by a Massachusetts court that had determined that each of the Fund Agreements would be governed by, and construed in accordance with, the internal laws of The Commonwealth of Massachusetts. Further, we express no opinion as to the state securities or Blue Sky laws of any jurisdiction, including The Commonwealth of Massachusetts. For purposes of our opinion set forth in paragraph 2 below with respect to the power and authority of the Fund to own, lease and operate its properties and conduct its business, we have relied upon certificates of officers of the Fund as to the states in which the Fund leases or owns real property or in which it conducts material operations. Insofar as this opinion relates to factual matters, we have made inquiries to officers of the Fund, the Investment Manager and the Portfolio Manager to the extent we believe reasonable with respect to such matters and have relied upon representations made by the Fund and the Investment Manager in the Underwriting Agreement, representations made by the Portfolio Manager to the Investment Manager and representations made to us by one or more officers of the Fund, the Investment Manager or the Portfolio Manager. We have not independently verified the accuracy of such representations. In respect of our opinions set forth in paragraphs 7, 9 and 10 below, we have not searched the dockets of any court, administrative body or other filing office in any jurisdiction. Based upon and subject to the foregoing, we are of the opinion that:

Appears in 1 contract

Samples: Underwriting Agreement (Pimco Municipal Income Fund)

Disclaimer of Liability of Trustees and Beneficiaries. A copy of the Agreement and Declaration of Trust of ~~each of~~ the Fund ~~and the Adviser~~ is on file with the Secretary of State of The Commonwealth of Massachusetts, and notice hereby is given that this Underwriting Agreement is executed on behalf of the Fund ~~and the Adviser, respectively,~~ by an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ in his or her capacity as an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ and not individually and that the obligations under or arising out of this Underwriting Agreement are not binding upon any of the Trustees, officers or shareholders individually but are binding only upon the assets and properties of the ~~Fund or the Adviser, as the case may be~~Fund. If the foregoing ~~is in accordance with your~~ correctly sets forth the understanding ~~of our agreement~~among the Fund, the Investment Manager and the Underwriters, please ~~sign and return to~~ so indicate in the ~~Fund and the Advisers a counterpart hereof~~space provided below, whereupon this ~~instrument, along with all counterparts, will become~~ letter and your acceptance shall constitute a binding agreement among the Fund, the Investment Manager and the Underwriters, ~~the Fund and the Advisers in accordance with its terms~~severally. Very truly yours, ~~XXXXX XXXXX TAX-MANAGED GLOBAL DIVERSIFIED EQUITY~~ PIMCO CALIFORNIA MUNICIPAL INCOME FUND By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- XXXXX XXXXX MANAGEMENT By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- RAMPART INVESTMENT MANAGEMENT COMPANY, INC. By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- CONFIRMED AND ACCEPTED, as of the date first above written: WACHOVIA CAPITAL MARKETS, LLC CITIGROUP GLOBAL MARKETS INC. XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED XXXXXX XXXXXXX & CO. INCORPORATED UBS SECURITIES LLC X.X. XXXXXXX & SONS, INC. XXXXXX X. XXXXX & CO. BANC OF AMERICA SECURITIES LLC BB&T CAPITAL MARKETS, A DIVISION OF XXXXX & XXXXXXXXXXXX, INC. XXXXXXX, XXXXXX & CO. XXXXXX, XXXXX XXXXX, INCORPORATED H&R BLOCK FINANCIAL ADVISORS, INC. J.J.B. XXXXXXXX, X.X. XXXXX, INC. XXXXXX XXXXXXXXXX XXXXX LLC XXXXXXXXXXX & CO. INC. XXXXXXX XXXXX & ASSOCIATES, INC. RBC CAPITAL MARKETS CORPORATION XXXX XXXX & CO., INC. SOUTHWEST SECURITIES, INC. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED SUNTRUST CAPITAL MARKETS, INC. WEDBUSH XXXXXX SECURITIES INC. XXXXX FARGO SECURITIES, LLC By: WACHOVIA CAPITAL MARKETS, LLC By ---------------------------------- Authorized Signatory For themselves and as Representatives of the Underwriters named in Exhibit A hereto. EXHIBIT A Number of Initial Name of Underwriter Securities ------------------- ---------- Wachovia Capital Markets, LLC...................................... Citigroup Global Markets Inc. Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated II ___________________________ ~~Xxxxxx Xxxxxxx & Co. Incorporated UBS Securities~~ By: Title: PIMCO FUNDS ADVISORS LLC _________~~_ X.X. Xxxxxxx & Sons, Inc.~~ __________________ ~~Xxxxxx X. Xxxxx~~ By: Title: Accepted and agreed to as of the date first above written, on behalf of themselves and the other several Underwriters named in Schedule A UBS WARBURG LLC XXXXXXX LYNCH, PIERCE, XXXXXX & ~~Co. Banc of America Securities~~ XXXXX INCORPORATED X.X. XXXXXXX & SONS, INC. FIRST UNION SECURITIES, INC. PRUDENTIAL SECURITIES INCORPORATED QUICK & XXXXXX, INC. A FLEETBOSTON FINANCIAL COMPANY XXXXXXX XXXXX & ASSOCIATES, INC. RBC XXXX XXXXXXXX INCORPORATED XXXXX FARGO SECURITIES, LLC XXXXXXX XXXXXX & CO. By: UBS WARBURG LLC _________~~_ BB&T Capital Markets, a division Of Xxxxx & Xxxxxxxxxxxx, Inc.~~ ______________________ ~~Xxxxxxx, Xxxxxx & Co.~~ By: Xxxxx Xxxxxxxx Title: Managing Director _______________________________ By: Xxxx X. Xxxx Title: Executive Director SCHEDULE A Number of Shares Name to be Purchased UBS Warburg [_______] Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx ~~Xxxxx~~Incorporated [_______] X.X. Xxxxxxx & Sons, Inc. [_______] First Union Securities [_______] Prudential Securities Incorporated [_______] Quick & Xxxxxx, Inc. A FleetBoston Financial Company [_______] Xxxxxxx Xxxxx & Associates, Inc. [_______] RBC Xxxx Xxxxxxxx Incorporated [_______] Xxxxx Fargo Securities, LLC [_______] Xxxxxxx Xxxxxx & Co. [_______] Total [_______] SCHEDULE B FORM OF OPINION OF ROPES & XXXX REGARDING THE FUND June [___], 2002 UBS Warburg LLC Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated X.X. Xxxxxxx & Sons, Inc. First Union Securities, Inc. Prudential Securities Incorporated Quick & Xxxxxx, Inc. A FleetBoston Financial Company Xxxxxxx Xxxxx & Associates, Inc. RBC Xxxx Xxxxxxxx Incorporated Xxxxx Fargo Securities, LLC Xxxxxxx Xxxxxx & Co. c/o UBS Warburg LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000-0000 Ladies and Gentlemen: We have acted as counsel to PIMCO California Municipal Income Fund II (the "Fund") in connection with the proposed issuance of [ ] common shares of beneficial interest (the "Shares"). This opinion is furnished to you pursuant to Section 7(e) of the Underwriting Agreement dated as of June [___], 2002 (the "Underwriting Agreement") among the Fund, PIMCO Funds Advisors LLC (the "Investment Manager") and UBS Warburg LLC, CIBC World Markets Corp. and X.X. Xxxxxxx & Sons, Inc., as representatives of the underwriters listed on Schedule A thereto (the "Underwriters"). Capitalized terms used in this opinion, unless otherwise defined, have the meanings specified in the Underwriting Agreement. We have examined signed copies of the Registration Statement of the Fund on Form N-2 (File No. 333-86298) under the Securities Act of 1933, as amended (the "Securities Act") (which also constitutes the Fund's Registration Statement on Form N-2 (File No. 811-21077) under the Investment Company Act of 1940, as amended (the "Investment Company Act")), including all exhibits thereto, as filed with the Securities and Exchange Commission (the "Commission") on April 16, 2002 (the "Original Registration Statement"), Pre-Effective Amendment No. 1 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on May 29, 2002 ("Pre-Effective Amendment No. 1"), Pre-Effective Amendment No. 2 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on June [___], 2002 ("Pre-Effective Amendment No. 2") and Pre-Effective Amendment No. 3 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on June [___], 2002 ("Pre-Effective Amendment No. 3," and together with Pre-Effective Amendment No. 1, Pre-Effective Amendment No. 2 and the Original Registration Statement, the "Registration Statement"); the Fund's Notification of Registration on Form N-8A under the Investment Company Act, as filed with the Commission on April 15, 2002 (the "Notification of Registration"); the Fund's Registration Statement on Form 8-A under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as filed with the Commission on June [___], 2002 (the "Exchange Act Registration Statement"); the Fund's Agreement and Declaration of Trust, as amended to the date hereof (the "Declaration of Trust"), on file in the offices of the Secretary of State of The Commonwealth of Massachusetts and the Clerk of the City of Boston; the By-laws of the Fund, as amended to the date hereof (the "By-laws"); a copy of the Prospectus dated June [___], 2002, relating to the Shares and the Statement of Additional Information of the Fund dated June [___], 2002, each as filed with the Commission pursuant to Rule 497 under the Securities Act on June [___], 2002 (together, the "Prospectus"); the Investment Management Agreement dated as of June [___], 2002, between the Fund and the Investment Manager (the "Investment Management Agreement"); the Portfolio Management Agreement dated as of June [___], 2002, between Pacific Investment Management Company LLC (the "Portfolio Manager") and the Investment Manager (the "Portfolio Management Agreement"); the Custodian Agreement dated as of June [___], 2002, between the Fund and State Street Bank and Trust Company (the "Custodian Agreement") and the Transfer Agency Services Agreement dated as of June [___], 2002, between the Fund and PFPC Inc. (the "Transfer Agency Agreement," and together with the Custodian Agreement, the "Fund Agreements"); the Terms and Conditions of the Fund's Dividend Reinvestment Plan; and the Underwriting Agreement. Additionally, we have relied upon the oral representation of Mr. Xxxxx X'Xxxxxx of the Commission staff to the effect that the Registration Statement and the Exchange Act Registration Statement became effective as of [___ a.m./p.m.] on June [___], 2002; a letter dated June [___], 2002, from Xx. Xxxxxxxxx Xxxxxx, Executive Vice President of the New York Stock Exchange, authorizing the Shares for listing on such Exchange; and the oral representation by the [_________~~_ H&R Block Financial Advisors~~] of the Commission [staff] that as of [ ] [a.m.], ~~Inc. __________ J.J.B. Xxxxxxxx~~no stop order suspending the effectiveness of the Registration Statement had been issued and no proceeding for any such purpose was pending or threatened. We have also examined and relied upon the original or copies of minutes of the meetings or written consents of the sole shareholder and the Board of Trustees of the Fund, ~~X.X. Xxxxx~~the documents delivered to the Underwriters by the Fund and the Investment Manager dated as of the date hereof pursuant to the Underwriting Agreement and such other documents, ~~Inc. __________ Xxxxxx Xxxxxxxxxx Xxxxx LLC __________ Xxxxxxxxxxx & Co. Inc. __________ Xxxxxxx Xxxxx & Associates~~including certificates of officers of the Fund and certificates of the Secretary of State of the State of New York as to the qualification and good standing of the Fund as a foreign entity in New York and the Secretary of State of the State of California as to the qualification and good standing of the Fund as a foreign entity in California, ~~Inc. __________ RBC Capital Markets Corporation __________ Xxxx Xxxx & Co.~~as we have deemed necessary for purposes of rendering our opinions below. We have assumed the genuineness of the signatures on all documents examined by us, ~~Inc. __________ Southwest Securities~~the authenticity of all documents submitted to us as originals and the conformity to the corresponding originals of all documents submitted to us as copies. We express no opinion as to the laws of any jurisdiction other than The Commonwealth of Massachusetts and the United States of America. We call your attention to the fact that the Underwriting Agreement provides that it is to be governed by and construed in accordance with the laws of the State of New York and the Transfer Agency Agreement provides that it is to be governed by and construed in accordance with the laws of the State of Delaware, ~~Inc. __________ Xxxxxx~~and to the fact that the Investment Management Agreement does not provide that it is to be governed by the laws of any particular jurisdiction. In rendering the opinion as to enforceability expressed in paragraph [5] below, ~~Xxxxxxxx & Company~~we have limited the scope of our opinion to the conclusions that would be reached by a Massachusetts court that had determined that each of the Underwriting Agreement, ~~Incorporated __________ Suntrust Capital Markets~~the Investment Management Agreement and the Fund Agreements would be governed by, ~~Inc. __________ Wedbush Xxxxxx Securities Inc. __________ Xxxxx Fargo Securities~~and construed in accordance with, ~~LLC __________ Total __________ EXHIBIT B FORM OF OPINION OF FUND COUNSEL~~the internal laws of The Commonwealth of Massachusetts. Further, we express no opinion as to the state securities or Blue Sky laws of any jurisdiction, including The Commonwealth of Massachusetts. For purposes of our opinion set forth in paragraph [2] below with respect to the power and authority of the Fund to own, lease and operate its properties and conduct its business, we have relied upon certificates of officers of the Fund as to the states in which the Fund leases or owns real property or in which it conducts material operations. Insofar as this opinion relates to factual matters, we have made inquiries to officers of the Fund, the Investment Manager and the Portfolio Manager to the extent we believe reasonable with respect to such matters and have relied upon representations made by the Fund and the Investment Manager in the Underwriting Agreement, representations made by the Portfolio Manager to the Investment Manager and representations made to us by one or more officers of the Fund, the Investment Manager or the Portfolio Manager. We have not independently verified the accuracy of such representations. In respect of our opinions set forth in paragraphs [7], [9] and [11] below, we have not searched the dockets of any court, administrative body or other filing office in any jurisdiction. Based upon and subject to the foregoing, we are of the opinion that:

Appears in 1 contract

Samples: Underwriting Agreement (Pimco California Municipal Income Fund Ii)

Disclaimer of Liability of Trustees and Beneficiaries. A copy of the ~~Agreement and~~ Declaration of Trust ~~of each of the Fund and the Adviser~~ is on file with the Secretary of State of The Commonwealth of Massachusetts, and notice hereby is given that this Underwriting Agreement is executed on behalf of the Fund ~~and the Adviser, respectively,~~ by an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ in his or her capacity as an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ and not individually and that the obligations under or arising out of this Underwriting Agreement are not binding upon any of the Trustees, officers or shareholders individually but are binding only upon the assets and properties of the ~~Fund or the Adviser, as the case may be~~Fund. If the foregoing ~~is in accordance with your~~ correctly sets forth the understanding ~~of our agreement~~among the Fund, the Investment Manager and the Underwriters, please ~~sign and return to~~ so indicate in the ~~Fund and the Advisers a counterpart hereof~~space provided below, whereupon this ~~instrument, along with all counterparts, will become~~ letter and your acceptance shall constitute a binding agreement among the Fund, the Investment Manager and the Underwriters, ~~the Fund and the Advisers in accordance with its terms~~severally. Very truly yours, ~~XXXXX XXXXX TAX-MANAGED GLOBAL DIVERSIFIED EQUITY~~ PIMCO CALIFORNIA MUNICIPAL INCOME FUND By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- XXXXX XXXXX MANAGEMENT By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- RAMPART INVESTMENT MANAGEMENT COMPANY, INC. By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- CONFIRMED AND ACCEPTED, as of the date first above written: WACHOVIA CAPITAL MARKETS, LLC CITIGROUP GLOBAL MARKETS INC. XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED XXXXXX XXXXXXX & CO. INCORPORATED UBS SECURITIES LLC X.X. XXXXXXX & SONS, INC. XXXXXX X. XXXXX & CO. BANC OF AMERICA SECURITIES LLC BB&T CAPITAL MARKETS, A DIVISION OF XXXXX & XXXXXXXXXXXX, INC. XXXXXXX, XXXXXX & CO. XXXXXX, XXXXX XXXXX, INCORPORATED H&R BLOCK FINANCIAL ADVISORS, INC. J.J.B. XXXXXXXX, X.X. XXXXX, INC. XXXXXX XXXXXXXXXX XXXXX LLC XXXXXXXXXXX & CO. INC. XXXXXXX XXXXX & ASSOCIATES, INC. RBC CAPITAL MARKETS CORPORATION XXXX XXXX & CO., INC. SOUTHWEST SECURITIES, INC. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED SUNTRUST CAPITAL MARKETS, INC. WEDBUSH XXXXXX SECURITIES INC. XXXXX FARGO SECURITIES, LLC By: WACHOVIA CAPITAL MARKETS, LLC By ---------------------------------- Authorized Signatory For themselves and as Representatives of the Underwriters named in Exhibit A hereto. EXHIBIT A Number of Initial Name of Underwriter Securities ------------------- ---------- Wachovia Capital Markets, LLC...................................... Citigroup Global Markets Inc. Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated __________________________ ~~Xxxxxx Xxxxxxx~~ By: Title: PIMCO ADVISORS L.P. __________________________ By: Title: Accepted and agreed to as of the date first above written, on behalf of themselves and the other several Underwriters named in Schedule A UBS WARBURG LLC X.X. XXXXXXX & ~~Co. Incorporated~~ SONS, INC. XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED By: UBS ~~Securities~~ WARBURG LLC _________~~_ X.X. Xxxxxxx & Sons, Inc.~~ _________________ ~~Xxxxxx X.~~ By: Xxxxx ~~& Co. Banc of America Securities LLC~~ Xxxxxxxx Title: Managing Director __________________________ ~~BB&T Capital Markets, a division Of Xxxxx~~ By: Xxxx X. Reit Title: Executive Director SCHEDULE A Number of Shares Name to be Purchased ---- --------------- UBS Warburg X.X. Xxxxxxx & ~~Xxxxxxxxxxxx~~Sons, Inc. ~~__________ Xxxxxxx~~Xxxxxxx Lynch, Pierce, Xxxxxx & ~~Co. __________ Xxxxxx,~~ Xxxxx ~~Xxxxx,~~ Incorporated __________ H&R Block Financial Advisors, Inc. __________ J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. __________ Xxxxxx Xxxxxxxxxx Xxxxx LLC __________ Xxxxxxxxxxx & Co. Inc. __________ Xxxxxxx Xxxxx & Associates, Inc. __________ RBC Capital Markets Corporation __________ Xxxx Xxxx & Co., Inc. __________ Southwest Securities, Inc. __________ Xxxxxx, Xxxxxxxx & Company, Incorporated __________ Suntrust Capital Markets, Inc. __________ Wedbush Xxxxxx Securities Inc. __________ Xxxxx Fargo Securities, LLC __________ Total __________ EXHIBIT SCHEDULE B FORM OF OPINION OF ROPES & XXXX REGARDING THE FUND ~~COUNSEL~~August , 2001 UBS Warburg LLC X.X. Xxxxxxx & Sons, Inc. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated c/o UBS Warburg LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000-0000 Ladies and Gentlemen: We have acted as counsel to PIMCO California Municipal Income Fund (the "Fund") in connection with the proposed issuance of 2,000 Auction Preferred Shares, Series A, 2,000 Auction Preferred Shares, Series B, and 2,000 Auction Preferred Shares, Series C (together, the "Preferred Shares"). This opinion is furnished to you pursuant to Section 6(e) of the Underwriting Agreement dated as of August , 2001 (the "Underwriting Agreement") among the Fund, PIMCO Advisors L.P. (the "Investment Manager") and UBS Warburg LLC, X.X. Xxxxxxx & Sons, Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as representatives of the underwriters listed on Schedule A thereto (the "Underwriters"). Capitalized terms used in this opinion, unless otherwise defined, have the meanings specified in the Underwriting Agreement. We have examined signed copies of the registration statement of the Fund on Form N-2 (File No. 333-10379) under the Securities Act of 1933, as amended (the "Securities Act") (which also constitutes Amendment No. 5 to the Fund's Registration Statement on Form N-2 (File No. 811-64824) under the Investment Company Act of 1940, as amended (the "Investment Company Act")), including all exhibits thereto, as filed with the Securities and Exchange Commission (the "Commission") on July 10, 2001 (the "Original Registration Statement"), Pre- Effective Amendment No. 1 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on August 14, 2001 ("Pre- Effective Amendment No. 1") and Pre-Effective Amendment No. 2 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on August , 2001 ("Pre-Effective Amendment No. 2," and together with Pre-Effective Amendment No. 1 and the Original Registration Statement, the "Registration Statement"); the Fund's Agreement and Declaration of Trust, as amended to the date hereof (the "Declaration of Trust"), on file in the offices of the Secretary of State of The Commonwealth of Massachusetts and the Clerk of the City of Boston; the Amended and Restated Bylaws of the Fund, as amended to the date hereof (the "Amended Bylaws"); a copy of the Prospectus dated August , 2001, relating to the Preferred Shares and the Statement of Additional Information of the Fund dated August , 2001, each as filed with the Commission pursuant to Rule 497 under the Securities Act on August , 2001 (together, the "Prospectus"); the Investment Management Agreement dated as of June 20, 2001, between the Fund and the Investment Manager (the "Investment Management Agreement"); the Portfolio Management Agreement dated as of June 20, 2001, between Pacific Investment Management Company LLC (the "Portfolio Manager") and the Investment Manager (the "Portfolio Management Agreement"), as agreed to and accepted by the Fund; the Custodian Agreement dated as of June 29, 2001, between the Fund and State Street Bank and Trust Company (the "Custodian Agreement"); the Auction Agency Agreement dated as of August , 2001, as supplemented by the acceptance letter dated as of the date hereof between between the Fund and Bankers Trust Company (the "Auction Agency Agreement," and together with the Custodian Agreement, the "Fund Agreements"); and the Underwriting Agreement. Additionally, we have relied upon the Order of the Commission pursuant to Section 8(a) of the Securities Act, declaring the Registration Statement effective as of p.m. on August , 2001, and the oral representation by a member of the Commission staff on the date hereof that as of a.m., no stop order suspending the effectiveness of the Registration Statement had been issued and no proceeding for any such purpose was pending or threatened. We have also examined and relied upon the original or copies of minutes of the meetings or written consents of the sole shareholder and the Board of Trustees of the Fund, the documents delivered to the Underwriters by the Fund and the Investment Manager dated as of the date hereof pursuant to the Underwriting Agreement and such other documents, including certificates of officers of the Fund, as we have deemed necessary for purposes of rendering our opinions below. For purposes of paragraph 2 below, we have relied solely on (1) the certificate dated as of August , 2001, of the Secretary of State of the State of California as to the entitlement of the Fund to transact intrastate business in the State of California and (2) a Certificate of the Special Deputy Secretary of State of the State of New York dated June 21, 2001, certifying copies of (a) a Certificate of Designation by the Fund dated June 11, 2001 and (b) a Statement under Section 18 of the New York General Associations Law, (3) a Filing Receipt of the Department of State of the State of New York dated June 21, 2001 relating to the Fund and (4) a LEXIS search on August , 2001, of the New York Department of State, Corporate Record, showing the "status" of the Fund as "active" and noting that "good standing status can only be determined by performing a search in the records of both the Department of State Corporation Records and the Department of Tax and Franchise." We have assumed the genuineness of the signatures on all documents examined by us, the authenticity of all documents submitted to us as originals and the conformity to the corresponding originals of all documents submitted to us as copies. We express no opinion as to the laws of any jurisdiction other than The Commonwealth of Massachusetts and the United States of America. We call your attention to the fact that each of the Underwriting Agreement, the Auction Agency Agreement and the Broker-Dealer Agreement provides that it is to be governed by and construed in accordance with the laws of the State of New York. In rendering the opinion as to enforceability expressed in paragraph 5 below, we have limited the scope of our opinion to the conclusions that would be reached by a Massachusetts court that had determined that each of the Fund Agreements would be governed by, and construed in accordance with, the internal laws of The Commonwealth of Massachusetts. Further, we express no opinion as to the state securities or Blue Sky laws of any jurisdiction, including The Commonwealth of Massachusetts. For purposes of our opinion set forth in paragraph 2 below with respect to the power and authority of the Fund to own, lease and operate its properties and conduct its business, we have relied upon certificates of officers of the Fund as to the states in which the Fund leases or owns real property or in which it conducts material operations. Insofar as this opinion relates to factual matters, we have made inquiries to officers of the Fund, the Investment Manager and the Portfolio Manager to the extent we believe reasonable with respect to such matters and have relied upon representations made by the Fund and the Investment Manager in the Underwriting Agreement, representations made by the Portfolio Manager to the Investment Manager and representations made to us by one or more officers of the Fund, the Investment Manager or the Portfolio Manager. We have not independently verified the accuracy of such representations. In respect of our opinions set forth in paragraphs 7, 9 and 10 below, we have not searched the dockets of any court, administrative body or other filing office in any jurisdiction. Based upon and subject to the foregoing, we are of the opinion that:

Appears in 1 contract

Samples: Underwriting Agreement (Pimco California Municipal Income Fund)

Disclaimer of Liability of Trustees and Beneficiaries. A copy of the ~~Agreement and~~ Declaration of Trust ~~of each of the Fund and the Adviser~~ is on file with the Secretary of State of The Commonwealth of Massachusetts, and notice hereby is given that this Underwriting Agreement is executed on behalf of the Fund ~~and the Adviser, respectively,~~ by an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ in his or her capacity as an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ and not individually and that the obligations under or arising out of this Underwriting Agreement are not binding upon any of the Trustees, officers or shareholders individually but are binding only upon the assets and properties of the ~~Fund or the Adviser, as the case may be~~Fund. If the foregoing ~~is in accordance with your~~ correctly sets forth the understanding ~~of our agreement~~among the Fund, the Investment Manager and the Underwriters, please ~~sign and return to~~ so indicate in the ~~Fund and the Advisers a counterpart hereof~~space provided below, whereupon this ~~instrument, along with all counterparts, will become~~ letter and your acceptance shall constitute a binding agreement among the Fund, the Investment Manager and the Underwriters, ~~the Fund and the Advisers in accordance with its terms~~severally. Very truly yours, ~~XXXXX XXXXX TAX-MANAGED GLOBAL DIVERSIFIED EQUITY~~ PIMCO NEW YORK MUNICIPAL INCOME FUND By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- XXXXX XXXXX MANAGEMENT By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- RAMPART INVESTMENT MANAGEMENT COMPANY, INC. By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- CONFIRMED AND ACCEPTED, as of the date first above written: WACHOVIA CAPITAL MARKETS, LLC CITIGROUP GLOBAL MARKETS INC. XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED XXXXXX XXXXXXX & CO. INCORPORATED UBS SECURITIES LLC X.X. XXXXXXX & SONS, INC. XXXXXX X. XXXXX & CO. BANC OF AMERICA SECURITIES LLC BB&T CAPITAL MARKETS, A DIVISION OF XXXXX & XXXXXXXXXXXX, INC. XXXXXXX, XXXXXX & CO. XXXXXX, XXXXX XXXXX, INCORPORATED H&R BLOCK FINANCIAL ADVISORS, INC. J.J.B. XXXXXXXX, X.X. XXXXX, INC. XXXXXX XXXXXXXXXX XXXXX LLC XXXXXXXXXXX & CO. INC. XXXXXXX XXXXX & ASSOCIATES, INC. RBC CAPITAL MARKETS CORPORATION XXXX XXXX & CO., INC. SOUTHWEST SECURITIES, INC. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED SUNTRUST CAPITAL MARKETS, INC. WEDBUSH XXXXXX SECURITIES INC. XXXXX FARGO SECURITIES, LLC By: WACHOVIA CAPITAL MARKETS, LLC By ---------------------------------- Authorized Signatory For themselves and as Representatives of the Underwriters named in Exhibit A hereto. EXHIBIT A Number of Initial Name of Underwriter Securities ------------------- ---------- Wachovia Capital Markets, LLC...................................... Citigroup Global Markets Inc. Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated __________________________ ~~Xxxxxx Xxxxxxx~~ By: Title: PIMCO ADVISORS L.P. __________________________ By: Title: Accepted and agreed to as of the date first above written, on behalf of themselves and the other several Underwriters named in Schedule A UBS WARBURG LLC X.X. XXXXXXX & ~~Co. Incorporated~~ SONS, INC. XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED By: UBS ~~Securities~~ WARBURG LLC _________~~_ X.X. Xxxxxxx & Sons, Inc.~~ _________________ ~~Xxxxxx X.~~ By: Xxxxx ~~& Co. Banc of America Securities LLC~~ Xxxxxxxx Title: Managing Director __________________________ ~~BB&T Capital Markets, a division Of Xxxxx~~ By: Xxxx X. Reit Title: Executive Director SCHEDULE A Number of Shares Name to be Purchased ---- --------------- UBS Warburg X.X. Xxxxxxx & ~~Xxxxxxxxxxxx~~Sons, Inc. ~~__________ Xxxxxxx~~Xxxxxxx Lynch, Pierce, Xxxxxx & ~~Co. __________ Xxxxxx,~~ Xxxxx ~~Xxxxx,~~ Incorporated __________ H&R Block Financial Advisors, Inc. __________ J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. __________ Xxxxxx Xxxxxxxxxx Xxxxx LLC __________ Xxxxxxxxxxx & Co. Inc. __________ Xxxxxxx Xxxxx & Associates, Inc. __________ RBC Capital Markets Corporation __________ Xxxx Xxxx & Co., Inc. __________ Southwest Securities, Inc. __________ Xxxxxx, Xxxxxxxx & Company, Incorporated __________ Suntrust Capital Markets, Inc. __________ Wedbush Xxxxxx Securities Inc. __________ Xxxxx Fargo Securities, LLC __________ Total ~~__________ EXHIBIT~~ SCHEDULE B FORM OF OPINION OF ROPES & XXXX REGARDING THE FUND ~~COUNSEL~~August , 2001 UBS Warburg LLC X.X. Xxxxxxx & Sons, Inc. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated c/o UBS Warburg LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000-0000 Ladies and Gentlemen: We have acted as counsel to PIMCO New York Municipal Income Fund (the "Fund") in connection with the proposed issuance of 2,520 Auction Preferred Shares, Series A (the "Preferred Shares"). This opinion is furnished to you pursuant to Section 6(e) of the Underwriting Agreement dated as of August , 2001 (the "Underwriting Agreement") among the Fund, PIMCO Advisors L.P. (the "Investment Manager") and UBS Warburg LLC, X.X. Xxxxxxx & Sons, Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as representatives of the underwriters listed on Schedule A thereto (the "Underwriters"). Capitalized terms used in this opinion, unless otherwise defined, have the meanings specified in the Underwriting Agreement. We have examined signed copies of the registration statement of the Fund on Form N-2 (File No. 333-10381) under the Securities Act of 1933, as amended (the "Securities Act") (which also constitutes Amendment No. 5 to the Fund's Registration Statement on Form N-2 (File No. 811-64828) under the Investment Company Act of 1940, as amended (the "Investment Company Act")), including all exhibits thereto, as filed with the Securities and Exchange Commission (the "Commission") on July 10, 2001 (the "Original Registration Statement"), Pre- Effective Amendment No. 1 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on August 14, 2001 ("Pre- Effective Amendment No. 1") and Pre-Effective Amendment No. 2 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on August , 2001 ("Pre-Effective Amendment No. 2," and together with Pre-Effective Amendment No. 1 and the Original Registration Statement, the "Registration Statement"); the Fund's Agreement and Declaration of Trust, as amended to the date hereof (the "Declaration of Trust"), on file in the offices of the Secretary of State of The Commonwealth of Massachusetts and the Clerk of the City of Boston; the Amended and Restated Bylaws of the Fund, as amended to the date hereof (the "Amended Bylaws"); a copy of the Prospectus dated August , 2001, relating to the Preferred Shares and the Statement of Additional Information of the Fund dated August , 2001, each as filed with the Commission pursuant to Rule 497 under the Securities Act on August , 2001 (together, the "Prospectus"); the Investment Management Agreement dated as of June 20, 2001, between the Fund and the Investment Manager (the "Investment Management Agreement"); the Portfolio Management Agreement dated as of June 20, 2001, between Pacific Investment Management Company LLC (the "Portfolio Manager") and the Investment Manager (the "Portfolio Management Agreement"), as agreed to and accepted by the Fund; the Custodian Agreement dated as of June 29, 2001, between the Fund and State Street Bank and Trust Company (the "Custodian Agreement"); the Auction Agency Agreement dated as of August , 2001, as supplemented by the acceptance letter dated as of the date hereof between between the Fund and Bankers Trust Company (the "Auction Agency Agreement," and together with the Custodian Agreement, the "Fund Agreements"); and the Underwriting Agreement. Additionally, we have relied upon the Order of the Commission pursuant to Section 8(a) of the Securities Act, declaring the Registration Statement effective as of p.m. on August , 2001, and the oral representation by a member of the Commission staff on the date hereof that as of a.m., no stop order suspending the effectiveness of the Registration Statement had been issued and no proceeding for any such purpose was pending or threatened. We have also examined and relied upon the original or copies of minutes of the meetings or written consents of the sole shareholder and the Board of Trustees of the Fund, the documents delivered to the Underwriters by the Fund and the Investment Manager dated as of the date hereof pursuant to the Underwriting Agreement and such other documents, including certificates of officers of the Fund, as we have deemed necessary for purposes of rendering our opinions below. For purposes of paragraph 2 below, we have relied solely on (1) the certificate dated as of August , 2001, of the Secretary of State of the State of California as to the entitlement of the Fund to transact intrastate business in the State of California and (2) a Certificate of the Special Deputy Secretary of State of the State of New York dated June 21, 2001, certifying copies of (a) a Certificate of Designation by the Fund dated June 11, 2001 and (b) a Statement under Section 18 of the New York General Associations Law, (3) a Filing Receipt of the Department of State of the State of New York dated June 21, 2001 relating to the Fund and (4) a LEXIS search on August , 2001, of the New York Department of State, Corporate Record, showing the "status" of the Fund as "active" and noting that "good standing status can only be determined by performing a search in the records of both the Department of State Corporation Records and the Department of Tax and Franchise." We have assumed the genuineness of the signatures on all documents examined by us, the authenticity of all documents submitted to us as originals and the conformity to the corresponding originals of all documents submitted to us as copies. We express no opinion as to the laws of any jurisdiction other than The Commonwealth of Massachusetts and the United States of America. We call your attention to the fact that each of the Underwriting Agreement, the Auction Agency Agreement and the Broker-Dealer Agreement provides that it is to be governed by and construed in accordance with the laws of the State of New York. In rendering the opinion as to enforceability expressed in paragraph 5 below, we have limited the scope of our opinion to the conclusions that would be reached by a Massachusetts court that had determined that each of the Fund Agreements would be governed by, and construed in accordance with, the internal laws of The Commonwealth of Massachusetts. Further, we express no opinion as to the state securities or Blue Sky laws of any jurisdiction, including The Commonwealth of Massachusetts. For purposes of our opinion set forth in paragraph 2 below with respect to the power and authority of the Fund to own, lease and operate its properties and conduct its business, we have relied upon certificates of officers of the Fund as to the states in which the Fund leases or owns real property or in which it conducts material operations. Insofar as this opinion relates to factual matters, we have made inquiries to officers of the Fund, the Investment Manager and the Portfolio Manager to the extent we believe reasonable with respect to such matters and have relied upon representations made by the Fund and the Investment Manager in the Underwriting Agreement, representations made by the Portfolio Manager to the Investment Manager and representations made to us by one or more officers of the Fund, the Investment Manager or the Portfolio Manager. We have not independently verified the accuracy of such representations. In respect of our opinions set forth in paragraphs 7, 9 and 10 below, we have not searched the dockets of any court, administrative body or other filing office in any jurisdiction. Based upon and subject to the foregoing, we are of the opinion that:

Appears in 1 contract

Samples: Underwriting Agreement (Pimco New York Municipal Income Fund)

Disclaimer of Liability of Trustees and Beneficiaries. A copy of the Agreement and Declaration of Trust of ~~each of~~ the Fund ~~and the Adviser~~ is on file with the Secretary of State of The Commonwealth of Massachusetts, and notice hereby is given that this Underwriting Agreement is executed on behalf of the Fund ~~and the Adviser, respectively,~~ by an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ in his or her capacity as an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ and not individually and that the obligations under or arising out of this Underwriting Agreement are not binding upon any of the Trustees, officers or shareholders individually but are binding only upon the assets and properties of the ~~Fund or the Adviser, as the case may be~~Fund. If the foregoing ~~is in accordance with your~~ correctly sets forth the understanding ~~of our agreement~~among the Fund, the Investment Manager and the Underwriters, please ~~sign and return to~~ so indicate in the ~~Fund and the Advisers a counterpart hereof~~space provided below, whereupon this ~~instrument, along with all counterparts, will become~~ letter and your acceptance shall constitute a binding agreement among the Fund, the Investment Manager and the Underwriters, ~~the Fund and the Advisers in accordance with its terms~~severally. Very truly yours, ~~XXXXX XXXXX TAX-MANAGED GLOBAL DIVERSIFIED EQUITY~~ PIMCO MUNICIPAL INCOME FUND By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- XXXXX XXXXX MANAGEMENT By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- RAMPART INVESTMENT MANAGEMENT COMPANY, INC. By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- CONFIRMED AND ACCEPTED, as of the date first above written: WACHOVIA CAPITAL MARKETS, LLC CITIGROUP GLOBAL MARKETS INC. XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED XXXXXX XXXXXXX & CO. INCORPORATED UBS SECURITIES LLC X.X. XXXXXXX & SONS, INC. XXXXXX X. XXXXX & CO. BANC OF AMERICA SECURITIES LLC BB&T CAPITAL MARKETS, A DIVISION OF XXXXX & XXXXXXXXXXXX, INC. XXXXXXX, XXXXXX & CO. XXXXXX, XXXXX XXXXX, INCORPORATED H&R BLOCK FINANCIAL ADVISORS, INC. J.J.B. XXXXXXXX, X.X. XXXXX, INC. XXXXXX XXXXXXXXXX XXXXX LLC XXXXXXXXXXX & CO. INC. XXXXXXX XXXXX & ASSOCIATES, INC. RBC CAPITAL MARKETS CORPORATION XXXX XXXX & CO., INC. SOUTHWEST SECURITIES, INC. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED SUNTRUST CAPITAL MARKETS, INC. WEDBUSH XXXXXX SECURITIES INC. XXXXX FARGO SECURITIES, LLC By: WACHOVIA CAPITAL MARKETS, LLC By ---------------------------------- Authorized Signatory For themselves and as Representatives of the Underwriters named in Exhibit A hereto. EXHIBIT A Number of Initial Name of Underwriter Securities ------------------- ---------- Wachovia Capital Markets, LLC...................................... Citigroup Global Markets Inc. Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated II ________________________ ~~Xxxxxx Xxxxxxx & Co. Incorporated UBS Securities~~ By: Title: PIMCO FUNDS ADVISORS LLC _________~~_ X.X. Xxxxxxx & Sons, Inc.~~ ________________ ~~Xxxxxx X. Xxxxx~~ By: Title: Accepted and agreed to as of the date first above written, on behalf of themselves and the other several Underwriters named in Schedule A UBS WARBURG LLC XXXXXXX LYNCH, PIERCE, XXXXXX & ~~Co. Banc of America Securities~~ XXXXX INCORPORATED X.X. XXXXXXX & SONS, INC. FIRST UNION SECURITIES, INC. PRUDENTIAL SECURITIES INCORPORATED QUICK & XXXXXX, INC. A FLEETBOSTON FINANCIAL COMPANY XXXXXXX XXXXX & ASSOCIATES, INC. RBC XXXX XXXXXXXX INCORPORATED XXXXX FARGO SECURITIES, LLC XXXXXXXXXX & CO. INC. MCDONALD INVESTMENTS, INC. A KEYCORP COMPANY By: UBS WARBURG LLC _________~~_ BB&T Capital Markets, a division Of Xxxxx & Xxxxxxxxxxxx, Inc.~~ ___________________ ~~Xxxxxxx, Xxxxxx & Co.~~ By: Xxxxx Xxxxxxxx Title: Managing Director ____________________________ By: Xxxx X. Xxxx Title: Executive Director SCHEDULE A Number of Shares Name to be Purchased UBS Warburg [_______] Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx ~~Xxxxx~~Incorporated [_______] X.X. Xxxxxxx & Sons, Inc. [_______] First Union Securities [_______] Prudential Securities Incorporated [_______] Quick & Xxxxxx, Inc. A FleetBoston Financial Company [_______] Xxxxxxx Xxxxx & Associates, Inc. [_______] RBC Xxxx Xxxxxxxx Incorporated [_______] Xxxxx Fargo Securities, LLC [_______] Xxxxxxxxxx & Co., Inc. [_______] McDonald Investments, Inc. A KeyCorp Company [_______] Total [_______] SCHEDULE B FORM OF OPINION OF ROPES & XXXX REGARDING THE FUND June [___], 2002 UBS Warburg LLC Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated X.X. Xxxxxxx & Sons, Inc. First Union Securities, Inc. Prudential Securities Incorporated Quick & Xxxxxx, Inc. A FleetBoston Financial Company Xxxxxxx Xxxxx & Associates, Inc. RBC Xxxx Xxxxxxxx Incorporated Xxxxx Fargo Securities, LLC Xxxxxxxxxx & Co. Inc. McDonald Investments, Inc. A KeyCorp Company c/o UBS Warburg LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000-0000 Ladies and Gentlemen: We have acted as counsel to PIMCO Municipal Income Fund II (the "Fund") in connection with the proposed issuance of [ ] common shares of beneficial interest (the "Shares"). This opinion is furnished to you pursuant to Section 7(e) of the Underwriting Agreement dated as of June [___], 2002 (the "Underwriting Agreement") among the Fund, PIMCO Funds Advisors LLC (the "Investment Manager") and UBS Warburg LLC, CIBC World Markets Corp. and X.X. Xxxxxxx & Sons, Inc., as representatives of the underwriters listed on Schedule A thereto (the "Underwriters"). Capitalized terms used in this opinion, unless otherwise defined, have the meanings specified in the Underwriting Agreement. We have examined signed copies of the Registration Statement of the Fund on Form N-2 (File No. 333-86282) under the Securities Act of 1933, as amended (the "Securities Act") (which also constitutes the Fund's Registration Statement on Form N-2 (File No. 811-21076) under the Investment Company Act of 1940, as amended (the "Investment Company Act")), including all exhibits thereto, as filed with the Securities and Exchange Commission (the "Commission") on April 15, 2002 (the "Original Registration Statement"), Pre-Effective Amendment No. 1 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on May 29, 2002 ("Pre-Effective Amendment No. 1"), Pre-Effective Amendment No. 2 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on June [___], 2002 ("Pre-Effective Amendment No. 2") and Pre-Effective Amendment No. 3 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on June [___], 2002 ("Pre-Effective Amendment No. 3," and together with Pre-Effective Amendment No. 1, Pre-Effective Amendment No. 2 and the Original Registration Statement, the "Registration Statement"); the Fund's Notification of Registration on Form N-8A under the Investment Company Act, as filed with the Commission on April 15, 2002 (the "Notification of Registration"); the Fund's Registration Statement on Form 8-A under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as filed with the Commission on June [___], 2002 (the "Exchange Act Registration Statement"); the Fund's Agreement and Declaration of Trust, as amended to the date hereof (the "Declaration of Trust"), on file in the offices of the Secretary of State of The Commonwealth of Massachusetts and the Clerk of the City of Boston; the By-laws of the Fund, as amended to the date hereof (the "By-laws"); a copy of the Prospectus dated June [___], 2002, relating to the Shares and the Statement of Additional Information of the Fund dated June [___], 2002, each as filed with the Commission pursuant to Rule 497 under the Securities Act on June [___], 2002 (together, the "Prospectus"); the Investment Management Agreement dated as of June [___], 2002, between the Fund and the Investment Manager (the "Investment Management Agreement"); the Portfolio Management Agreement dated as of June [___], 2002, between Pacific Investment Management Company LLC (the "Portfolio Manager") and the Investment Manager (the "Portfolio Management Agreement"); the Custodian Agreement dated as of June [___], 2002, between the Fund and State Street Bank and Trust Company (the "Custodian Agreement") and the Transfer Agency Services Agreement dated as of June [___], 2002, between the Fund and PFPC Inc. (the "Transfer Agency Agreement," and together with the Custodian Agreement, the "Fund Agreements"); the Terms and Conditions of the Fund's Dividend Reinvestment Plan; and the Underwriting Agreement. Additionally, we have relied upon the oral representation of Mr. Xxxxx X'Xxxxxx of the Commission staff to the effect that the Registration Statement and the Exchange Act Registration Statement became effective as of [___ a.m./p.m.] on June [___], 2002; a letter dated June [___], 2002, from Xx. Xxxxxxxxx Xxxxxx, Executive Vice President of the New York Stock Exchange, authorizing the Shares for listing on such Exchange; and the oral representation by the [_________~~_ H&R Block Financial Advisors~~] of the Commission [staff] that as of [ ] [a.m.], ~~Inc. __________ J.J.B. Xxxxxxxx~~no stop order suspending the effectiveness of the Registration Statement had been issued and no proceeding for any such purpose was pending or threatened. We have also examined and relied upon the original or copies of minutes of the meetings or written consents of the sole shareholder and the Board of Trustees of the Fund, ~~X.X. Xxxxx~~the documents delivered to the Underwriters by the Fund and the Investment Manager dated as of the date hereof pursuant to the Underwriting Agreement and such other documents, ~~Inc. __________ Xxxxxx Xxxxxxxxxx Xxxxx LLC __________ Xxxxxxxxxxx & Co. Inc. __________ Xxxxxxx Xxxxx & Associates~~including certificates of officers of the Fund and certificates of the Secretary of State of the State of New York as to the qualification and good standing of the Fund as a foreign entity in New York and the Secretary of State of the State of California as to the qualification and good standing of the Fund as a foreign entity in California, ~~Inc. __________ RBC Capital Markets Corporation __________ Xxxx Xxxx & Co.~~as we have deemed necessary for purposes of rendering our opinions below. We have assumed the genuineness of the signatures on all documents examined by us, ~~Inc. __________ Southwest Securities~~the authenticity of all documents submitted to us as originals and the conformity to the corresponding originals of all documents submitted to us as copies. We express no opinion as to the laws of any jurisdiction other than The Commonwealth of Massachusetts and the United States of America. We call your attention to the fact that the Underwriting Agreement provides that it is to be governed by and construed in accordance with the laws of the State of New York and the Transfer Agency Agreement provides that it is to be governed by and construed in accordance with the laws of the State of Delaware, ~~Inc. __________ Xxxxxx~~and to the fact that the Investment Management Agreement does not provide that it is to be governed by the laws of any particular jurisdiction. In rendering the opinion as to enforceability expressed in paragraph [5] below, ~~Xxxxxxxx & Company~~we have limited the scope of our opinion to the conclusions that would be reached by a Massachusetts court that had determined that each of the Underwriting Agreement, ~~Incorporated __________ Suntrust Capital Markets~~the Investment Management Agreement and the Fund Agreements would be governed by, ~~Inc. __________ Wedbush Xxxxxx Securities Inc. __________ Xxxxx Fargo Securities~~and construed in accordance with, ~~LLC __________ Total __________ EXHIBIT B FORM OF OPINION OF FUND COUNSEL~~the internal laws of The Commonwealth of Massachusetts. Further, we express no opinion as to the state securities or Blue Sky laws of any jurisdiction, including The Commonwealth of Massachusetts. For purposes of our opinion set forth in paragraph [2] below with respect to the power and authority of the Fund to own, lease and operate its properties and conduct its business, we have relied upon certificates of officers of the Fund as to the states in which the Fund leases or owns real property or in which it conducts material operations. Insofar as this opinion relates to factual matters, we have made inquiries to officers of the Fund, the Investment Manager and the Portfolio Manager to the extent we believe reasonable with respect to such matters and have relied upon representations made by the Fund and the Investment Manager in the Underwriting Agreement, representations made by the Portfolio Manager to the Investment Manager and representations made to us by one or more officers of the Fund, the Investment Manager or the Portfolio Manager. We have not independently verified the accuracy of such representations. In respect of our opinions set forth in paragraphs [7], [9] and [11] below, we have not searched the dockets of any court, administrative body or other filing office in any jurisdiction. Based upon and subject to the foregoing, we are of the opinion that:

Appears in 1 contract

Samples: Underwriting Agreement (Pimco Municipal Income Fund Ii)

Disclaimer of Liability of Trustees and Beneficiaries. A copy of the Agreement and Declaration of Trust of ~~each of~~ the Fund ~~and the Adviser~~ is on file with the Secretary of State of The Commonwealth of Massachusetts, and notice hereby is given that this Underwriting Agreement is executed on behalf of the Fund ~~and the Adviser, respectively,~~ by an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ in his or her capacity as an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ and not individually and that the obligations under or arising out of this Underwriting Agreement are not binding upon any of the Trustees, officers or shareholders individually but are binding only upon the assets and properties of the ~~Fund or the Adviser, as the case may be~~Fund. If the foregoing ~~is in accordance with your~~ correctly sets forth the understanding ~~of our agreement~~among the Fund, the Investment Manager and the Underwriters, please ~~sign and return to~~ so indicate in the ~~Fund and the Advisers a counterpart hereof~~space provided below, whereupon this ~~instrument, along with all counterparts, will become~~ letter and your acceptance shall constitute a binding agreement among the Fund, the Investment Manager and the Underwriters, ~~the Fund and the Advisers in accordance with its terms~~severally. Very truly yours, ~~XXXXX XXXXX TAX~~XXXXXXXX-~~MANAGED GLOBAL DIVERSIFIED EQUITY~~ XXXXXXXXX CONVERTIBLE & INCOME FUND ~~By ------------------------------------ Name~~-------------------------- By: ~~----------------------------------~~ Title: ~~--------------------------------- XXXXX XXXXX~~ PIMCO ADVISORS FUND MANAGEMENT ~~By ------------------------------------ Name~~LLC -------------------------- By: ~~----------------------------------~~ Title: --------------------------------- RAMPART INVESTMENT MANAGEMENT COMPANY, INC. By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- CONFIRMED AND ACCEPTED, Accepted and agreed to as of the date first above written~~: WACHOVIA CAPITAL MARKETS~~, ~~LLC CITIGROUP GLOBAL MARKETS INC. XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED XXXXXX XXXXXXX & CO. INCORPORATED~~ on behalf of themselves and the other several Underwriters named in Schedule A UBS SECURITIES LLC X.X. XXXXXXX & SONS, INC. XXXXXX X. XXXXX & CO. BANC OF AMERICA SECURITIES LLC BB&T CAPITAL MARKETS, A DIVISION OF XXXXX & XXXXXXXXXXXX, INC. XXXXXXX, XXXXXX & CO. XXXXXX, XXXXX XXXXX, INCORPORATED H&R BLOCK FINANCIAL ADVISORS, INC. J.J.B. XXXXXXXX, X.X. XXXXX, INC. XXXXXX XXXXXXXXXX XXXXX LLC XXXXXXXXXXX & CO. INC. XXXXXXX XXXXX & ASSOCIATES, INC. RBC CAPITAL MARKETS CORPORATION XXXX XXXX & CO., INC. SOUTHWEST SECURITIES, INC. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED SUNTRUST CAPITAL MARKETS, INC. WEDBUSH XXXXXX SECURITIES INC. XXXXX FARGO SECURITIES, Warburg LLC By: ~~WACHOVIA CAPITAL MARKETS~~UBS WARBURG LLC -------------------------- By: Xxxxx Xxxxxxxx Title: Managing Director -------------------------- By: Xxxx X. Xxxx Title: Executive Director SCHEDULE A ------------------------------------------------------------------------------ Name Number of Shares to be Purchased ------------------------------------------------------------------------------ UBS Warburg LLC ------------------------------------------------------------------------------ Prudential Securities Incorporated ------------------------------------------------------------------------------ Wachovia Securities, Inc. ------------------------------------------------------------------------------ Xxxx Xxxxx Xxxx Xxxxxx, Incorporated ------------------------------------------------------------------------------ RBC Xxxx Xxxxxxxx Incorporated ------------------------------------------------------------------------------ Xxxxx Fargo Securities, LLC By ---------------------------------- Authorized Signatory For themselves and as Representatives of the Underwriters named in Exhibit A hereto. EXHIBIT A Number of Initial Name of Underwriter Securities ------------------- ---------- Wachovia Capital Markets------------------------------------------------------------------------------ Advest, ~~LLC...................................... Citigroup Global Markets~~ Inc. ~~Xxxxxxx Xxxxx~~------------------------------------------------------------------------------ H&R Block Financial Advisors, ~~Xxxxxx, Xxxxxx & Xxxxx Incorporated __________ Xxxxxx Xxxxxxx~~ Inc. ------------------------------------------------------------------------------ Xxxxxxxxxx & Co. ~~Incorporated UBS Securities LLC __________ X.X. Xxxxxxx & Sons,~~ Inc. ~~__________ Xxxxxx X. Xxxxx & Co. Banc of America Securities LLC __________ BB&T Capital Markets, a division Of Xxxxx & Xxxxxxxxxxxx, Inc. __________ Xxxxxxx, Xxxxxx & Co. __________~~ ------------------------------------------------------------------------------ Xxxxxx, Xxxxx Xxxxx, Incorporated ~~__________~~ ------------------------------------------------------------------------------ Xxxxxx Xxxxxxxxxx Xxxxx LLC ------------------------------------------------------------------------------ McDonald Investments Inc., a KeyCorp Company ------------------------------------------------------------------------------ Wedbush Xxxxxx Securities Inc. ------------------------------------------------------------------------------ TOTAL ------------------------------------------------------------------------------ SCHEDULE B FORM OF OPINION OF ROPES & XXXX REGARDING THE FUND March [ ], 2003 UBS Warburg LLC Prudential Securities Incorporated Wachovia Securities, Inc. Xxxx Xxxxx Xxxx Xxxxxx, Incorporated RBC Xxxx Xxxxxxxx Incorporated Xxxxx Fargo Securities, LLC Advest, Inc. H&R Block Financial Advisors, Inc. ~~__________ J.J.B. Xxxxxxxx~~Xxxxxxxxxx & Co. Inc. Xxxxxx, ~~X.X.~~ Xxxxx Xxxxx, ~~Inc. __________~~ Incorporated Xxxxxx Xxxxxxxxxx Xxxxx LLC ~~__________ Xxxxxxxxxxx & Co. Inc. __________ Xxxxxxx Xxxxx & Associates~~XxXxxxxx Investments Inc., Inc. __________ RBC Capital Markets Corporation __________ Xxxx Xxxx & Co., Inc. __________ Southwest Securities, Inc. __________ Xxxxxx, Xxxxxxxx & Company, Incorporated __________ Suntrust Capital Markets, Inc. __________ a KeyCorp Company Wedbush Xxxxxx Securities Inc. ~~__________~~ as Managing Underwriters c/o UBS Warburg LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000-0000 Ladies and Gentlemen: We have acted as counsel to Xxxxxxxx-Xxxxxxxxx Convertible & Income Fund (the "Fund") in connection with the proposed issuance of [ ] common shares of beneficial interest, with a par value of $0.00001 per share (the "Shares"). This opinion is furnished to you pursuant to Section 6(e) of the Underwriting Agreement dated as of March [26], 2003 (the "Underwriting Agreement") among the Fund, PIMCO Advisors Fund Management LLC (formerly, PIMCO Funds Advisors LLC) (the "Investment Manager") and UBS Warburg LLC, Prudential Securities Incorporated, Wachovia Securities, Inc., Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, RBC Xxxx Xxxxxxxx Incorporated, Xxxxx Fargo Securities, LLC, Advest, Inc., H&R Block Financial Advisors, Inc., Xxxxxxxxxx & Co. Inc., Xxxxxx, Xxxxx Xxxxx, Incorporated, Xxxxxx Xxxxxxxxxx Xxxxx LLC, McDonald Investments Inc., a KeyCorp Company, and Wedbush Xxxxxx Securities Inc., as representatives of the underwriters listed on Schedule A thereto (the "Underwriters"). Capitalized terms used in this opinion, unless otherwise defined, have the meanings specified in the Underwriting Agreement. We have examined signed copies of the registration statement of the Fund on Form N-2 (File No. 333-102624) under the Securities Act of 1933, as amended (the "Securities Act"), and under the Investment Company Act of 1940, as amended (the "Investment Company Act"), including all exhibits thereto, as filed with the Securities and Exchange Commission (the "Commission") on January 21, 2003 (the "Original Registration Statement"), Pre-Effective Amendment No. 1 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on February 24, 2003 ("Pre-Effective Amendment No. 1"), Pre-Effective Amendment No. 2 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on March [ ], 2003 ("Pre-Effective Amendment No. 2"), Pre-Effective Amendment No. 3 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on March [ ], 2003 ("Pre-Effective Amendment No. 3"), and, together with the Original Registration Statement, Pre-Effective Amendment No. 1 and Pre-Effective Amendment No. 2, the "Registration Statement"); the Fund's Notification of Registration on Form N-8A (File No. 811-21284) under the Investment Company Act, as filed with the Commission on January 21, 2003 (the "Notification of Registration"); the Fund's Registration Statement on Form 8-A under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as filed with the Commission on March 14, 2003 (the "Exchange Act Registration Statement"); the Fund's Agreement and Declaration of Trust, as amended and restated to the date hereof (the "Declaration of Trust"), on file in the offices of the Secretary of State of The Commonwealth of Massachusetts and the Clerk of the City of Boston; the By-laws of the Fund, as amended and restated to the date hereof (the "By-laws"); a copy of the Prospectus dated March [26], 2003, relating to the Shares and the Statement of Additional Information of the Fund dated March [26], 2003, each as filed with the Commission pursuant to Rule 497 under the Securities Act on March [ ], 2003 (together, the "Prospectus"); the Investment Management Agreement dated as of March 12, 2003, between the Fund and the Investment Manager (the "Investment Management Agreement"); the Portfolio Management Agreement dated as of March 12, 2003, between Xxxxxxxx-Xxxxxxxxx Capital Management LLC ~~__________ Total __________ EXHIBIT B FORM OF OPINION OF FUND COUNSEL~~(the "Portfolio Manager") and the Investment Manager (the "Portfolio Management Agreement"), as agreed to and accepted by the Fund; the Custodian Agreement dated as of March [ ], 2003, between the Fund and Brown Brothers Xxxxxxxx & Co. (the "Custodian Agreement"); the Accounting Agency Agreement dated as of March [ ], 2003, between the Fund and Brown Brothers Xxxxxxxx & Co. (the "Accounting Agency Agreement"); and the Transfer Agency Services Agreement dated as of March [ ], 2003, between the Fund and PFPC Inc. (the "Transfer Agency Agreement," and, together with the Custodian Agreement and the Accounting Agency Agreement, the "Fund Agreements"); the Terms and Conditions of the Fund's Dividend Reinvestment Plan (the "Dividend Reinvestment Plan"); and the Underwriting Agreement. Additionally, we have relied upon the oral representation of Xx. Xxxxxxxx Xxxxxxxx of the Commission staff to the effect that the Registration Statement became effective as of [2:30] p.m. on March [26], 2003; a letter dated March 10, 2003, from Xx. Xxxxxx Xxxxxxx, Executive Vice President of the New York Stock Exchange, authorizing the Shares for listing on such Exchange; and the oral representation by a member of the Commission staff on the date hereof that as of [8:00] a.m., no stop order suspending the effectiveness of the Registration Statement had been issued and no proceeding for any such purpose was pending or threatened. We have also examined and relied upon the original or copies of written consents of shareholders and the Board of Trustees of the Fund and copies of resolutions of the Board of Trustees of the Fund certified by the Secretary of the Fund, the documents delivered to the Underwriters by the Fund and the Investment Manager dated as of the date hereof pursuant to the Underwriting Agreement and such other documents, including certificates of officers and Trustees of the Fund, as we have deemed necessary for purposes of rendering our opinions below. For purposes of paragraph 2 below, we have relied solely on (1) the certificate of recent date of the Secretary of State of the State of California as to the entitlement of the Fund to transact intrastate business in the State of California, (2) a Certificate of the Special Deputy Secretary of State of the State of New York dated March [ ], 2003, certifying copies of (a) a Certificate of Designation by the Fund dated March [ ], 2003 and (b) a Statement under Section 18 of the New York General Associations Law, (3) a Filing Receipt of the Department of State of the State of New York dated March [ ], 2003 relating to the Fund and (4) a LEXIS search on March 31, 2003 of the New York Department of State, Corporate Record, showing the "status" of the Fund as "active" and noting that "good standing status can only be determined by performing a search in the records of both the Department of State Corporation Records and the Department of Tax and Franchise." We have assumed the genuineness of the signatures on all documents examined by us, the authenticity of all documents submitted to us as originals and the conformity to the corresponding originals of all documents submitted to us as copies. For purposes of our opinions regarding the effectiveness of the Registration Statement and the Exchange Act Registration Statement, we are relying solely on the oral representations of the Commission staff. We express no opinion as to the laws of any jurisdiction other than The Commonwealth of Massachusetts and the United States of America. We call your attention to the fact that the Underwriting Agreement provides that it is to be governed by and construed in accordance with the laws of the State of New York and the Transfer Agency Agreement provides that it is to be governed by and construed in accordance with the laws of the State of Delaware, and to the fact that the Investment Management Agreement does not provide that it is to be governed by the laws of any particular jurisdiction. In rendering the opinion as to enforceability expressed in paragraph 5 below, we have limited the scope of our opinion to the conclusions that would be reached by a Massachusetts court that had determined that each of the Fund Agreements would be governed by, and construed in accordance with, the internal laws of The Commonwealth of Massachusetts. Further, we express no opinion as to the state securities or Blue Sky laws of any jurisdiction, including The Commonwealth of Massachusetts. For purposes of our opinion set forth in paragraph 2 below with respect to the power and authority of the Fund to own, lease and operate its properties and conduct its business, we have relied upon certificates of officers of the Fund as to the states in which the Fund leases or owns real property or in which it conducts material operations. Insofar as this opinion relates to factual matters, we have also made inquiries to officers of the Fund, the Investment Manager and the Portfolio Manager to the extent we believe reasonable with respect to such matters and have relied inter alia upon representations made by the Fund and the Investment Manager in the Underwriting Agreement, representations made by the Portfolio Manager to the Investment Manager and representations made to us by one or more officers of the Fund, the Investment Manager or the Portfolio Manager. We have not independently verified the accuracy of such representations. Where our opinion relates to our "knowledge," that term means the conscious awareness of facts or other information by any lawyer in our firm giving substantive attention to the representation of the Fund with respect to the transactions contemplated by the Underwriting Agreement, and does not require or imply (i) any examination of this firm's, any such lawyer's or any other person's or entity's files, or (ii) that any inquiry was made of any lawyer (other than the lawyers described above). In respect of our opinions set forth in paragraphs 7, 9 and 11 below, we have not searched the dockets of any court, administrative body or other filing office in any jurisdiction. Based upon and subject to the foregoing, we are of the opinion that:

Appears in 1 contract

Samples: Underwriting Agreement (Nicholas Applegate Convertible & Income Fund)

Disclaimer of Liability of Trustees and Beneficiaries. A copy of the Agreement and Declaration of Trust of ~~each of~~ the Fund ~~and the Adviser~~ is on file with the Secretary of State of The Commonwealth of Massachusetts, and notice hereby is given that this Underwriting Agreement is executed on behalf of the Fund ~~and the Adviser, respectively,~~ by an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ in his or her capacity as an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ and not individually and that the obligations under or arising out of this Underwriting Agreement are not binding upon any of the Trustees, officers or shareholders individually but are binding only upon the assets and properties of the ~~Fund or the Adviser, as the case may be~~Fund. If the foregoing ~~is in accordance with your~~ correctly sets forth the understanding ~~of our agreement~~among the Fund, the Investment Manager and the Underwriters, please ~~sign and return to~~ so indicate in the ~~Fund and the Advisers a counterpart hereof~~space provided below, whereupon this ~~instrument, along with all counterparts, will become~~ letter and your acceptance shall constitute a binding agreement among the Fund, the Investment Manager and the Underwriters, ~~the Fund and the Advisers in accordance with its terms~~severally. Very truly yours, ~~XXXXX XXXXX TAX-MANAGED GLOBAL DIVERSIFIED EQUITY~~ PIMCO NEW YORK MUNICIPAL INCOME FUND By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- XXXXX XXXXX MANAGEMENT By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- RAMPART INVESTMENT MANAGEMENT COMPANY, INC. By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- CONFIRMED AND ACCEPTED, as of the date first above written: WACHOVIA CAPITAL MARKETS, LLC CITIGROUP GLOBAL MARKETS INC. XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED XXXXXX XXXXXXX & CO. INCORPORATED UBS SECURITIES LLC X.X. XXXXXXX & SONS, INC. XXXXXX X. XXXXX & CO. BANC OF AMERICA SECURITIES LLC BB&T CAPITAL MARKETS, A DIVISION OF XXXXX & XXXXXXXXXXXX, INC. XXXXXXX, XXXXXX & CO. XXXXXX, XXXXX XXXXX, INCORPORATED H&R BLOCK FINANCIAL ADVISORS, INC. J.J.B. XXXXXXXX, X.X. XXXXX, INC. XXXXXX XXXXXXXXXX XXXXX LLC XXXXXXXXXXX & CO. INC. XXXXXXX XXXXX & ASSOCIATES, INC. RBC CAPITAL MARKETS CORPORATION XXXX XXXX & CO., INC. SOUTHWEST SECURITIES, INC. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED SUNTRUST CAPITAL MARKETS, INC. WEDBUSH XXXXXX SECURITIES INC. XXXXX FARGO SECURITIES, LLC By: WACHOVIA CAPITAL MARKETS, LLC By ---------------------------------- Authorized Signatory For themselves and as Representatives of the Underwriters named in Exhibit A hereto. EXHIBIT A Number of Initial Name of Underwriter Securities ------------------- ---------- Wachovia Capital Markets, LLC...................................... Citigroup Global Markets Inc. Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated III ________________________ ~~Xxxxxx Xxxxxxx & Co. Incorporated UBS Securities~~ By: Title: PIMCO FUNDS ADVISORS LLC _________~~_ X.X. Xxxxxxx & Sons, Inc.~~ _______________ ~~Xxxxxx X. Xxxxx~~ By: Title: Accepted and agreed to as of the date first above written, on behalf of themselves and the other several Underwriters named in Schedule A UBS WARBURG LLC X.X. XXXXXXX & Sons, Inc. RBC XXXX XXXXXXXX INCORPORATED WACHOVIA SECURITIES, INC. ADVEST, INC. XXXXXXXXXX & Co. ~~Banc of America Securities~~ Inc. H&R Block Financial Advisors, Inc. XXXXXX XXXXXXXXXX XXXXX LLC QUICK & Xxxxxx, Inc. By: UBS WARBURG LLC _________~~_ BB&T Capital Markets, a division Of Xxxxx & Xxxxxxxxxxxx, Inc.~~ __________________ ~~Xxxxxxx, Xxxxxx & Co.~~ By: Xxxxx Xxxxxxxx Title: Managing Director ___________________________ ~~Xxxxxx~~By: Xxxx X. Reit Title: Executive Director SCHEDULE A -------------------------------------------------------------------------------- Name Number of Shares to be Purchased ---- --------------------------------- -------------------------------------------------------------------------------- UBS Warburg LLC -------------------------------------------------------------------------------- X.X. Xxxxxxx & Sons, ~~Xxxxx Xxxxx~~Inc. -------------------------------------------------------------------------------- RBC Xxxx Xxxxxxxx Incorporated -------------------------------------------------------------------------------- Wachovia Securities, ~~Incorporated __________~~ Inc. -------------------------------------------------------------------------------- Advest, Inc. -------------------------------------------------------------------------------- Xxxxxxxxxx & Co. Inc. -------------------------------------------------------------------------------- H&R Block Financial Advisors, Inc. ~~__________ J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. __________~~ -------------------------------------------------------------------------------- Xxxxxx Xxxxxxxxxx Xxxxx LLC ~~__________ Xxxxxxxxxxx~~ -------------------------------------------------------------------------------- Quick & ~~Co. Inc. __________ Xxxxxxx Xxxxx & Associates~~Xxxxxx, Inc. __________ RBC Capital Markets Corporation __________ Xxxx Xxxx & Co., Inc. __________ Southwest Securities, Inc. __________ Xxxxxx, Xxxxxxxx & Company, Incorporated __________ Suntrust Capital Markets, Inc. __________ Wedbush Xxxxxx Securities Inc. __________ Xxxxx Fargo Securities, LLC __________ Total __________ EXHIBIT -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- TOTAL -------------------------------------------------------------------------------- SCHEDULE B FORM OF OPINION OF ROPES & XXXX REGARDING THE FUND ~~COUNSEL~~October [ ], 2002 UBS Warburg LLC X.X. Xxxxxxx & Sons, Inc. RBC Xxxx Xxxxxxxx Incorporated Wachovia Securities, Inc. Advest, Inc. Xxxxxxxxxx & Co. Inc. H&R Block Financial Advisors, Inc. Xxxxxx Xxxxxxxxxx Xxxxx LLC Quick & Xxxxxx, Inc. c/o UBS Warburg LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000-0000 Ladies and Gentlemen: We have acted as counsel to PIMCO New York Municipal Income Fund III (the "Fund") in connection with the proposed issuance of [ ] common shares of beneficial interest (the "Shares"). This opinion is furnished to you pursuant to Section 7(e) of the Underwriting Agreement dated as of October [___], 2002 (the "Underwriting Agreement") among the Fund, PIMCO Funds Advisors LLC (the name of which entity is expected to be changed to "PIMCO Advisors Fund Management LLC," effective October 31, 2002) (the "Investment Manager") and UBS Warburg LLC, X.X. Xxxxxxx & Sons, Inc., RBC Xxxx Xxxxxxxx Incorporated, Wachovia Securities, Inc., Advest, Inc., Xxxxxxxxxx & Co. Inc., H&R Block Financial Advisors, Inc., Xxxxxx Xxxxxxxxxx Xxxxx LLC, and Quick & Xxxxxx, Inc., as representatives of the underwriters listed on Schedule A thereto (the "Underwriters"). Capitalized terms used in this opinion, unless otherwise defined, have the meanings specified in the Underwriting Agreement. We have examined signed copies of the Registration Statement of the Fund on Form N-2 (File No. 333-98583) under the Securities Act of 1933, as amended (the "Securities Act") (which also constitutes the Fund's Registration Statement on Form N-2 (File No. 811-21189) under the Investment Company Act of 1940, as amended (the "Investment Company Act")), including all exhibits thereto, as filed with the Securities and Exchange Commission (the "Commission") on [ ], 2002 (the "Original Registration Statement"), Pre-Effective Amendment No. 1 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on [ ], 2002 ("Pre-Effective Amendment No. 1"), Pre-Effective Amendment No. 2 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on [ ], 2002 ("Pre-Effective Amendment No. 2") and Pre-Effective Amendment No. 3 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on [ ], 2002 ("Pre-Effective Amendment No. 3," and together with Pre-Effective Amendment No. 1, Pre-Effective Amendment No. 2 and the Original Registration Statement, the "Registration Statement"); the Fund's Notification of Registration on Form N-8A under the Investment Company Act, as filed with the Commission on [ ], 2002 (the "Notification of Registration"); the Fund's Registration Statement on Form 8-A under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as filed with the Commission on [ ], 2002 (the "Exchange Act Registration Statement"); the Fund's Agreement and Declaration of Trust, as amended to the date hereof (the "Declaration of Trust"), on file in the offices of the Secretary of State of The Commonwealth of Massachusetts and the Clerk of the City of Boston; the By-laws of the Fund, as amended to the date hereof (the "By-laws"); a copy of the Prospectus dated [ ], 2002, relating to the Shares and the Statement of Additional Information of the Fund dated [ ], 2002, each as filed with the Commission pursuant to Rule 497 under the Securities Act on [ ], 2002 (together, the "Prospectus"); the Investment Management Agreement dated as of [ ], 2002, between the Fund and the Investment Manager (the "Investment Management Agreement"); the Portfolio Management Agreement dated as of [ ], 2002, between Pacific Investment Management Company LLC (the "Portfolio Manager") and the Investment Manager (the "Portfolio Management Agreement"); the Custodian Agreement dated as of [ ], 2002, between the Fund and State Street Bank and Trust Company (the "Custodian Agreement") and the Transfer Agency Services Agreement dated as of [ ], 2002, between the Fund and PFPC Inc. (the "Transfer Agency Agreement," and together with the Custodian Agreement, the "Fund Agreements"); the Terms and Conditions of the Fund's Dividend Reinvestment Plan; and the Underwriting Agreement. Additionally, we have relied upon the oral representation of Mr. Xxxxx X'Xxxxxx of the Commission staff to the effect that the Registration Statement and the Exchange Act Registration Statement became effective as of [___ a.m./p.m.] on [ ], 2002; a letter dated [ ], 2002, from Xx. Xxxxxxxxx Xxxxxx, Executive Vice President of the New York Stock Exchange, authorizing the Shares for listing on such Exchange; and the oral representation by the [ ] of the Commission [staff] that as of [ ] [a.m.], no stop order suspending the effectiveness of the Registration Statement had been issued and no proceeding for any such purpose was pending or threatened. We have also examined and relied upon the original or copies of minutes of the meetings or written consents of the sole shareholder and the Board of Trustees of the Fund, the documents delivered to the Underwriters by the Fund and the Investment Manager dated as of the date hereof pursuant to the Underwriting Agreement and such other documents, including certificates of officers of the Fund and certificates of the Secretary of State of the State of New York as to the qualification and good standing of the Fund as a foreign entity in New York and the Secretary of State of the State of California as to the qualification and good standing of the Fund as a foreign entity in California, as we have deemed necessary for purposes of rendering our opinions below. We have assumed the genuineness of the signatures on all documents examined by us, the authenticity of all documents submitted to us as originals and the conformity to the corresponding originals of all documents submitted to us as copies. We express no opinion as to the laws of any jurisdiction other than The Commonwealth of Massachusetts and the United States of America. We call your attention to the fact that the Underwriting Agreement provides that it is to be governed by and construed in accordance with the laws of the State of New York and the Transfer Agency Agreement provides that it is to be governed by and construed in accordance with the laws of the State of Delaware, and to the fact that the Investment Management Agreement does not provide that it is to be governed by the laws of any particular jurisdiction. In rendering the opinion as to enforceability expressed in paragraph [5] below, we have limited the scope of our opinion to the conclusions that would be reached by a Massachusetts court that had determined that each of the Underwriting Agreement, the Investment Management Agreement and the Fund Agreements would be governed by, and construed in accordance with, the internal laws of The Commonwealth of Massachusetts. Further, we express no opinion as to the state securities or Blue Sky laws of any jurisdiction, including The Commonwealth of Massachusetts. For purposes of our opinion set forth in paragraph [2] below with respect to the power and authority of the Fund to own, lease and operate its properties and conduct its business, we have relied upon certificates of officers of the Fund as to the states in which the Fund leases or owns real property or in which it conducts material operations. Insofar as this opinion relates to factual matters, we have made inquiries to officers of the Fund, the Investment Manager and the Portfolio Manager to the extent we believe reasonable with respect to such matters and have relied upon representations made by the Fund and the Investment Manager in the Underwriting Agreement, representations made by the Portfolio Manager to the Investment Manager and representations made to us by one or more officers of the Fund, the Investment Manager or the Portfolio Manager. We have not independently verified the accuracy of such representations. In respect of our opinions set forth in paragraphs [7], [9] and [11] below, we have not searched the dockets of any court, administrative body or other filing office in any jurisdiction. Based upon and subject to the foregoing, we are of the opinion that:

Appears in 1 contract

Samples: Underwriting Agreement (Pimco New York Municipal Income Fund Iii)

Disclaimer of Liability of Trustees and Beneficiaries. A copy of the Agreement and Declaration of Trust of ~~each of~~ the Fund ~~and the Adviser~~ is on file with the Secretary of State of The Commonwealth of Massachusetts, and notice hereby is given that this Underwriting Agreement is executed on behalf of the Fund ~~and the Adviser, respectively,~~ by an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ in his or her capacity as an officer or Trustee of the Fund ~~or the Adviser, as the case may be,~~ and not individually and that the obligations under or arising out of this Underwriting Agreement are not binding upon any of the Trustees, officers or shareholders individually but are binding only upon the assets and properties of the ~~Fund or the Adviser, as the case may be~~Fund. If the foregoing ~~is in accordance with your~~ correctly sets forth the understanding ~~of our agreement~~among the Fund, the Investment Manager and the Underwriters, please ~~sign and return to~~ so indicate in the ~~Fund and the Advisers a counterpart hereof~~space provided below, whereupon this ~~instrument, along with all counterparts, will become~~ letter and your acceptance shall constitute a binding agreement among the Fund, the Investment Manager and the Underwriters, ~~the Fund and the Advisers in accordance with its terms~~severally. Very truly yours, ~~XXXXX XXXXX TAX-MANAGED GLOBAL DIVERSIFIED EQUITY~~ PIMCO CALIFORNIA MUNICIPAL INCOME FUND By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- XXXXX XXXXX MANAGEMENT By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- RAMPART INVESTMENT MANAGEMENT COMPANY, INC. By ------------------------------------ Name: ---------------------------------- Title: --------------------------------- CONFIRMED AND ACCEPTED, as of the date first above written: WACHOVIA CAPITAL MARKETS, LLC CITIGROUP GLOBAL MARKETS INC. XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED XXXXXX XXXXXXX & CO. INCORPORATED UBS SECURITIES LLC X.X. XXXXXXX & SONS, INC. XXXXXX X. XXXXX & CO. BANC OF AMERICA SECURITIES LLC BB&T CAPITAL MARKETS, A DIVISION OF XXXXX & XXXXXXXXXXXX, INC. XXXXXXX, XXXXXX & CO. XXXXXX, XXXXX XXXXX, INCORPORATED H&R BLOCK FINANCIAL ADVISORS, INC. J.J.B. XXXXXXXX, X.X. XXXXX, INC. XXXXXX XXXXXXXXXX XXXXX LLC XXXXXXXXXXX & CO. INC. XXXXXXX XXXXX & ASSOCIATES, INC. RBC CAPITAL MARKETS CORPORATION XXXX XXXX & CO., INC. SOUTHWEST SECURITIES, INC. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED SUNTRUST CAPITAL MARKETS, INC. WEDBUSH XXXXXX SECURITIES INC. XXXXX FARGO SECURITIES, LLC By: WACHOVIA CAPITAL MARKETS, LLC By ---------------------------------- Authorized Signatory For themselves and as Representatives of the Underwriters named in Exhibit A hereto. EXHIBIT A Number of Initial Name of Underwriter Securities ------------------- ---------- Wachovia Capital Markets, LLC...................................... Citigroup Global Markets Inc. Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated III ___________________________________ ~~Xxxxxx Xxxxxxx & Co. Incorporated UBS Securities~~ By: Title: PIMCO FUNDS ADVISORS LLC _________~~_ X.X. Xxxxxxx & Sons, Inc.~~ __________________________ ~~Xxxxxx X. Xxxxx~~ By: Title: Accepted and agreed to as of the date first above written, on behalf of themselves and the other several Underwriters named in Schedule A UBS WARBURG LLC X.X. XXXXXXX & ~~Co. Banc of America Securities~~ SONS, INC. RBC XXXX XXXXXXXX INCORPORATED WACHOVIA SECURITIES, INC. XXXXX FARGO SECURITIES, LLC XXXXXXX, XXXXXX & CO. H&R BLOCK FINANCIAL ADVISORS, INC. QUICK & XXXXXX, INC. WEDBUSH XXXXXX SECURITIES INC. By: UBS WARBURG LLC _________~~_ BB&T Capital Markets, a division Of Xxxxx & Xxxxxxxxxxxx, Inc.~~ ________________ ~~Xxxxxxx, Xxxxxx & Co.~~ By: Xxxxx Xxxxxxxx Title: Managing Director _________________________ ~~Xxxxxx~~By: Xxxx X. Xxxx Title: Executive Director SCHEDULE A -------------------------------------------------------------------------------- Number of Shares to be Name Purchased ---- --------- -------------------------------------------------------------------------------- UBS Warburg LLC -------------------------------------------------------------------------------- X.X. Xxxxxxx & Sons, Inc. -------------------------------------------------------------------------------- RBC Xxxx Xxxxxxxx Incorporated -------------------------------------------------------------------------------- Wachovia Securities, Inc. -------------------------------------------------------------------------------- Xxxxx ~~Xxxxx~~Fargo Securities, ~~Incorporated __________~~ LLC -------------------------------------------------------------------------------- Xxxxxxx, Xxxxxx & Co. -------------------------------------------------------------------------------- H&R Block Financial Advisors, Inc. ~~__________ J.J.B. Xxxxxxxx, X.X. Xxxxx~~--------------------------------------------------------------------------- ---- Quick & Xxxxxx, Inc. __________ Xxxxxx Xxxxxxxxxx Xxxxx LLC __________ Xxxxxxxxxxx & Co. Inc. __________ Xxxxxxx Xxxxx & Associates, Inc. __________ RBC Capital Markets Corporation __________ Xxxx Xxxx & Co., Inc. __________ Southwest Securities, Inc. __________ Xxxxxx, Xxxxxxxx & Company, Incorporated __________ Suntrust Capital Markets, Inc. __________ --------------------------------------------------------------------------- ---- Wedbush Xxxxxx Securities Inc. ~~__________~~ -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- TOTAL -------------------------------------------------------------------------------- SCHEDULE B FORM OF OPINION OF ROPES & XXXX REGARDING THE FUND October [ ], 2002 UBS Warburg LLC X.X. Xxxxxxx & Sons, Inc. RBC Xxxx Xxxxxxxx Incorporated Wachovia Securities, Inc. Xxxxx Fargo Securities, LLC Xxxxxxx, Xxxxxx & Co. H&R Block Financial Advisors, Inc. Quick & Xxxxxx, Inc. Wedbush Xxxxxx Securities Inc. c/o UBS Warburg LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000-0000 Ladies and Gentlemen: We have acted as counsel to PIMCO California Municipal Income Fund III (the "Fund") in connection with the proposed issuance of [ ] common shares of beneficial interest (the "Shares"). This opinion is furnished to you pursuant to Section 7(e) of the Underwriting Agreement dated as of October [___~~____~~], 2002 (the "Underwriting Agreement") among the Fund, e Funds Advisors LLC (the name of which entity is expected to be changed to "PIMCO Advisors Fund Management LLC," effective October 31, 2002) (the "Investment Manager") and UBS Warburg LLC, X.X. Xxxxxxx & Sons, Inc., RBC Xxxx Xxxxxxxx Incorporated, Wachovia Securities, Inc., Xxxxx Fargo Securities, LLC, Xxxxxxx, Xxxxxx & Co., H&R Block Financial Advisors, Inc., Quick & Xxxxxx, Inc., and Wedbush Xxxxxx Securities Inc., as representatives of the underwriters listed on Schedule A thereto (the "Underwriters"). Capitalized terms used in this opinion, unless otherwise defined, have the meanings specified in the Underwriting Agreement. We have examined signed copies of the Registration Statement of the Fund on Form N-2 (File No. 333-98585) under the Securities Act of 1933, as amended (the "Securities Act") (which also constitutes the Fund's Registration Statement on Form N-2 (File No. 811-21188) under the Investment Company Act of 1940, as amended (the "Investment Company Act")), including all exhibits thereto, as filed with the Securities and Exchange Commission (the "Commission") on [ ], 2002 (the "Original Registration Statement"), Pre-Effective Amendment No. 1 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on [ ], 2002 ("Pre-Effective Amendment No. 1"), Pre-Effective Amendment No. 2 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on [ ], 2002 ("Pre- Effective Amendment No. 2") and Pre-Effective Amendment No. 3 to the Original Registration Statement, including all exhibits thereto, as filed with the Commission on [ ], 2002 ("Pre-Effective Amendment No. 3," and together with Pre-Effective Amendment No. 1, Pre-Effective Amendment No. 2 and the Original Registration Statement, the "Registration Statement"); the Fund's Notification of Registration on Form N-8A under the Investment Company Act, as filed with the Commission on [ ], 2002 (the "Notification of Registration"); the Fund's Registration Statement on Form 8-A under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as filed with the Commission on [ ], 2002 (the "Exchange Act Registration Statement"); the Fund's Agreement and Declaration of Trust, as amended to the date hereof (the "Declaration of Trust"), on file in the offices of the Secretary of State of The Commonwealth of Massachusetts and the Clerk of the City of Boston; the By-laws of the Fund, as amended to the date hereof (the "By-laws"); a copy of the Prospectus dated [ ], 2002, relating to the Shares and the Statement of Additional Information of the Fund dated [ ], 2002, each as filed with the Commission pursuant to Rule 497 under the Securities Act on [ ], 2002 (together, the "Prospectus"); the Investment Management Agreement dated as of [ ], 2002, between the Fund and the Investment Manager (the "Investment Management Agreement"); the Portfolio Management Agreement dated as of [ ], 2002, between Pacific Investment Management Company LLC (the "Portfolio Manager") and the Investment Manager (the "Portfolio Management Agreement"); the Custodian Agreement dated as of [ ], 2002, between the Fund and State Street Bank and Trust Company (the "Custodian Agreement") and the Transfer Agency Services Agreement dated as of [ ], 2002, between the Fund and PFPC Inc. (the "Transfer Agency Agreement," and together with the Custodian Agreement, the "Fund Agreements"); the Terms and Conditions of the Fund's Dividend Reinvestment Plan; and the Underwriting Agreement. Additionally, we have relied upon the oral representation of Mr. Xxxxx X'Xxxxxx of the Commission staff to the effect that the Registration Statement and the Exchange Act Registration Statement became effective as of [___ ~~Total __________ EXHIBIT B FORM OF OPINION OF FUND COUNSEL~~a.m./p.m.] on [ ], 2002; a letter dated [ ], 2002, from Xx. Xxxxxxxxx Xxxxxx, Executive Vice President of the New York Stock Exchange, authorizing the Shares for listing on such Exchange; and the oral representation by the [ ] of the Commission [staff] that as of [ ] [a.m.], no stop order suspending the effectiveness of the Registration Statement had been issued and no proceeding for any such purpose was pending or threatened. We have also examined and relied upon the original or copies of minutes of the meetings or written consents of the sole shareholder and the Board of Trustees of the Fund, the documents delivered to the Underwriters by the Fund and the Investment Manager dated as of the date hereof pursuant to the Underwriting Agreement and such other documents, including certificates of officers of the Fund and certificates of the Secretary of State of the State of New York as to the qualification and good standing of the Fund as a foreign entity in New York and the Secretary of State of the State of California as to the qualification and good standing of the Fund as a foreign entity in California, as we have deemed necessary for purposes of rendering our opinions below. We have assumed the genuineness of the signatures on all documents examined by us, the authenticity of all documents submitted to us as originals and the conformity to the corresponding originals of all documents submitted to us as copies. We express no opinion as to the laws of any jurisdiction other than The Commonwealth of Massachusetts and the United States of America. We call your attention to the fact that the Underwriting Agreement provides that it is to be governed by and construed in accordance with the laws of the State of New York and the Transfer Agency Agreement provides that it is to be governed by and construed in accordance with the laws of the State of Delaware, and to the fact that the Investment Management Agreement does not provide that it is to be governed by the laws of any particular jurisdiction. In rendering the opinion as to enforceability expressed in paragraph [5] below, we have limited the scope of our opinion to the conclusions that would be reached by a Massachusetts court that had determined that each of the Underwriting Agreement, the Investment Management Agreement and the Fund Agreements would be governed by, and construed in accordance with, the internal laws of The Commonwealth of Massachusetts. Further, we express no opinion as to the state securities or Blue Sky laws of any jurisdiction, including The Commonwealth of Massachusetts. For purposes of our opinion set forth in paragraph [2] below with respect to the power and authority of the Fund to own, lease and operate its properties and conduct its business, we have relied upon certificates of officers of the Fund as to the states in which the Fund leases or owns real property or in which it conducts material operations. Insofar as this opinion relates to factual matters, we have made inquiries to officers of the Fund, the Investment Manager and the Portfolio Manager to the extent we believe reasonable with respect to such matters and have relied upon representations made by the Fund and the Investment Manager in the Underwriting Agreement, representations made by the Portfolio Manager to the Investment Manager and representations made to us by one or more officers of the Fund, the Investment Manager or the Portfolio Manager. We have not independently verified the accuracy of such representations. In respect of our opinions set forth in paragraphs [7], [9] and [11] below, we have not searched the dockets of any court, administrative body or other filing office in any jurisdiction. Based upon and subject to the foregoing, we are of the opinion that:

Appears in 1 contract

Samples: Underwriting Agreement (Pimco California Municipal Income Fund Iii)

Common use of Disclaimer of Liability of Trustees and Beneficiaries Clause in Contracts