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Exhibit 99(h)(1)
Form of Underwriting Agreement
2,666,667 SHARES*
OF BENEFICIAL INTEREST
XXXXX XXXXX MASSACHUSETTS MUNICIPAL INCOME TRUST
UNDERWRITING AGREEMENT
January 26, 1999
PAINEWEBBER INCORPORATED
X.X. XXXXXXX & SONS, INC.
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXX XXXXX XXXXXX INC.
ADVEST, INC.
XXXXXX XXXXXXX INCORPORATED
as Representatives of the Several Underwriters
named in Schedule 1 hereto
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxx Xxxxx Massachusetts Municipal Income Trust, a
Massachusetts business trust (the "Trust"), proposes to issue and sell to you
and the other underwriters named in Schedule 1 hereto (the "Underwriters"), for
whom you are acting as representatives (the "Representatives"), up to 2,666,667
shares of beneficial interest (the "Firm Shares"), par value $.01 per share (the
"Shares of Beneficial Interest"). In addition, the Trust hereby grants to the
Underwriters an option (the "Option") to purchase up to an additional 400,000 of
its Shares (the "Option Shares") solely for the purpose of covering
over-allotments. The Firm Shares and the Option Shares are referred to
collectively herein as the "Shares."
Xxxxx Xxxxx Management, a Massachusetts business trust ("Xxxxx
Xxxxx" or the "Investment Adviser"), will act as the Trust's investment adviser
pursuant to an Investment Advisory Agreement by and between the Trust and the
Invest-
--------
* Plus an option to purchase, in the aggregate, up to 400,000 additional
Shares to cover over-allotments.
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ment Adviser, dated as of January 29, 1999 (the "Investment Advisory
Agreement"). The Trust has engaged Xxxxx Xxxxx to act as its administrator
pursuant to an Administration Agreement, dated as of January 29, 1999. Investors
Bank & Trust Company ("IBT") will act as the custodian (the "Custodian") of the
Trust's cash and portfolio assets pursuant to a Custody Agreement, effective as
of January 29, 1999 (the "Custody Agreement"). First Data Investor Services
Group will act as the Trust's transfer agent and dividend disbursing agent (the
"Transfer Agent") pursuant to a transfer agency agreement, dated as of January
29, 1999 (the "Transfer Agency Agreement"). In addition, Xxxxx Xxxxx has
retained PaineWebber Incorporated, which is also one of the Underwriters, to
serve as the Trust's Shareholder Servicing Agent pursuant to a shareholder
servicing agreement (the "Shareholder Servicing Agreement"), dated as of January
29, 1999.
The Trust and the Investment Adviser each hereby confirms as
follows their agreements with the Representatives and the several other
Underwriters.
1. Sale and Purchase; Compensation
(a) The Trust will issue and sell to each
Underwriter, and each Underwriter will purchase from the Trust, the number of
Firm Shares set forth opposite such Underwriter's name in Schedule 1 hereto, at
the purchase price of $15.00 per Firm Share.
(b) The Trust grants to the Underwriters the Option
to purchase all or any part of the Option Shares for the same consideration per
share as for the Firm Shares. The Option may be exercised only to cover
over-allotments in the sales of the Firm Shares by the Underwriters. The number
of Option Shares (adjusted by the Representatives to eliminate fractions) to be
purchased by each Underwriter will be the same percentage of the aggregate
number of Option Shares being sold as such Underwriter is obligated to purchase
of the Firm Shares. Such Option may be exercised in whole or in part, only to
cover over-allotments, at any time or from time to time on or before the 45th
day after the date of this Underwriting Agreement, upon written or telefacsimile
notice (the "Option Shares Notice") from the Representatives to the Trust no
later than 12:00 noon, New York City time, at least two and not more than five
business days before the date specified for closing in the Option Shares Notice
(the "Option Shares Closing Date"), setting forth the number of Option Shares to
be purchased and the time and date of such purchase. Upon delivery and receipt
of the Option Shares Notice, the Trust will issue and sell to each Underwriter,
and each
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Underwriter will purchase from the Trust, on the Option Shares Closing Date, its
portion of the number of Option Shares set forth in the Option Shares Notice.
(c) The obligations of the Underwriters under this
Underwriting Agreement are several and not joint and are undertaken on the basis
of the representations and are subject to the conditions set forth in this
Underwriting Agreement.
(d) The Investment Adviser agrees to make the
payments to the Underwriters when and as required by Section 2 hereof.
2. Payment and Delivery. Delivery by the Trust of the Firm
Shares (the "Firm Shares Closing") to the Representatives for the accounts of
the Underwriters against payment of the purchase price by wire transfer of
Federal Funds or similar same day funds to the Trust for the Firm Shares, will
take place at the offices of PaineWebber Incorporated (the "Managing
Representative"), 1285 Avenue of the Americas, New York, New York or such other
location as is agreed upon by the parties hereto, or through the facilities of
the Depository Trust Company or another mutually agreeable facility, at 9:00
a.m., New York City time, on the third business day following the date of this
Underwriting Agreement, or at such time on such other date, not later than ten
business days after the date of this Underwriting Agreement, as may be agreed
upon by the Trust and the Managing Representative (the "Firm Shares Closing
Date").
If and to the extent that the Option is exercised, delivery of
the Option Shares and payment by the Underwriters (in the manner specified
above) will take place at the offices or through the facilities specified above
for the Firm Shares Closing at the time and date (which may be the Firm Shares
Closing Date) specified in the Option Shares Notice. Any Option Shares Closing
Date may not be later than three business days following the exercise of the
related Option. The Firm Shares Closing Date and any Option Shares Closing Date
are called the "Closing Dates."
Certificates evidencing Shares of Beneficial Interest will be
in definitive form (or temporary form acceptable to the New York Stock
Exchange), registered in such names and in such denominations as the Managing
Representative requests at least three full business days before the Firm Shares
Closing Date or, in the case of Option Shares, on the day of notice of exercise
of the Option as described in Section 1(b), and will be made available to the
Managing Representative for checking and packaging, at a place in New York City
designated by the Managing Representative, at least one full business day before
the relevant Closing Date.
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Simultaneous with delivery to the Underwriters of and payment
by the Underwriters for (i) Firm Shares on the Firm Shares Closing Date and (ii)
Option Shares on the Option Shares Closing Date, Xxxxx Xxxxx (or an affiliate as
determined by Xxxxx Xxxxx) will pay to the Underwriters an amount equal to 4.50%
of the purchase price per Share for each Share to be purchased by the
Underwriters on such date by wire transfer of Federal Funds or similar same-day
funds on such Firm Shares Closing Date or Option Shares Closing Date, as the
case may be, to the order of the Managing Representative, on behalf of itself
and the Underwriters.
3. Registration Statement and Prospectus; Public Offering. The
Trust has filed with the Securities and Exchange Commission (the "Commission"),
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), the
Investment Company Act of 1940, as amended (the "Investment Company Act"), and
the published rules and regulations adopted by the Commission under the
Securities Act (the "Securities Act Rules") and the Investment Company Act (the
"Investment Company Act Rules"), a Notification of Registration on Form N-8A
(the "Notification") pursuant to Section 8 of the Investment Company Act and a
registration statement on Form N-2 (File Nos. 333-68725 and 811-09147) relating
to the Shares (the "registration statement"), including a preliminary prospectus
(including any preliminary statement of additional information), and such
amendments to such registration statement as may have been required to the date
of this Underwriting Agreement. The preliminary prospectus (including any
preliminary statement of additional information) is to be used in connection
with the offering and sale of the Shares. The term "Preliminary Prospectus" as
used herein means any preliminary prospectus (including any preliminary
statement of additional information) included at any time as a part of the
registration statement and any preliminary prospectus (including any preliminary
statement of additional information) omitted therefrom pursuant to the
Securities Act Rules.
The Trust has furnished the Representatives copies of such
registration statement, each amendment to such registration statement filed by
the Trust with the Commission and the Preliminary Prospectus filed by the Trust
with the Commission or used by the Trust. If the registration statement has not
become effective, a further amendment (the "Final Amendment") to such
registration statement, including the forms of final prospectus (including any
final statement of additional information), necessary to permit such
registration statement to become effective will promptly be filed by the Trust
with the Commission. If such registration statement has become effective and any
prospectus (including any statement of additional information) contained therein
omits certain information at the time of effectiveness pursuant to Rule
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430A of the Securities Act Rules, a final prospectus (the "Rule 430A
Prospectus") containing such omitted information will be filed by the Trust with
the Commission in accordance with Rule 497(h) of the Securities Act Rules. The
registration statement as amended at the time it becomes or became effective
(the "Effective Date"), including financial statements and all exhibits, and any
information deemed to be included by Rule 430A, is called the "Registration
Statement." The term "Prospectus" means the prospectus (including any statement
of additional information) in the form in which it is first filed with the
Commission pursuant to Rule 497(b), (h) or (j) of the Securities Act Rules, as
the case may be.
The Trust and the Investment Adviser understand that the
Underwriters propose to make a public offering of the Firm Shares, as described
in the Prospectus, as soon after the Effective Date (or, if later, after the
date this Underwriting Agreement is signed) as the Managing Representative deems
advisable. The Trust confirms that the Underwriters and dealers have been
authorized to distribute the Preliminary Prospectus relating to the Shares
included in the initial filing of the registration statement and are authorized
to distribute the Prospectus and any amendments or supplements thereto.
4. Representations.
(a) Each of the Trust and the Investment Adviser
jointly and severally represents to each Underwriter as follows:
(i) On (A) the Effective Date and the date on which
the Prospectus is first filed with the Commission pursuant to Rule
497(b), (h) or (j) of the Securities Act Rules, as the case may be,
(B) the date on which any post-effective amendment to the Registration
Statement (except any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of this
Underwriting Agreement or (y) the date on which the distribution of
the Shares is completed) became or becomes effective or any amendment
or supplement to the Prospectus was or is filed with the Commission
and (C) the Closing Dates, the Registration Statement, the Prospectus
and any such amendment or supplement thereto and the Notification
complied or will comply in all material respects with the requirements
of the Securities Act, the Investment Company Act, the Securities Act
Rules and the Investment Company Act Rules, as the case may be. On the
Effective Date and on the date that any post-
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effective amendment to the Registration Statement (except any
post-effective amendment which is filed with the Commission after the
later of (x) one year from the date of this Underwriting Agreement or
(y) the date on which the distribution of the Shares is completed)
became or becomes effective, neither the Registration Statement nor any
such amendment did or will contain any untrue statement of a material
fact or omit to state a material fact required to be stated in it or
necessary to make the statements in it not misleading. At the Effective
Date and, if applicable, the date the Prospectus or any amendment or
supplement to the Prospectus was or is filed with the Commission and at
the Closing Dates, the Prospectus did not or will not, as the case may
be, contain any untrue statement of a material fact or omit to state a
material fact required to be stated in it or necessary to make the
statements in it, in light of the circumstances under which they were
made, not misleading. The foregoing representations in this Section
4(a)(i) do not apply to statements or omissions relating to the
Underwriters made in reliance on and in conformity with information
furnished in writing to the Trust by the Representatives expressly for
use in the Registration Statement, the Prospectus, or any amendments or
supplements thereto, as described in Section 7(f) hereof.
(ii) The Trust has been duly formed, is validly
existing as a business trust under the laws of the Commonwealth of
Massachusetts, with full power and authority to conduct all the
activities conducted by it, to own or lease all assets owned or leased
by it and to conduct its business as described in the Registration
Statement and Prospectus, and the Trust is duly licensed and qualified
to do business and in good standing in each jurisdiction in which its
ownership or leasing of property or its conducting of business requires
such qualification, except where the failure to be so qualified or be
in good standing would not have a material adverse effect on the Trust,
and the Trust owns, possesses or has obtained and currently maintains
all governmental licenses, permits, consents, orders, approvals and
other authorizations, whether foreign or domestic, necessary to carry
on its business as contemplated in the Prospectus. The Trust has no
subsidiaries.
(iii) The capitalization of the Trust is as set forth
in the Registration Statement and the Prospectus. The Shares of Benefi-
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cial Interest of the Trust conform in all material respects to the
description of them in the Prospectus. All the outstanding Shares of
Beneficial Interest have been duly authorized and are validly issued,
fully paid and nonassessable (except as described in the Registration
Statement). The Shares to be issued and delivered to and paid for by
the Underwriters in accordance with this Underwriting Agreement against
payment therefor as provided by this Underwriting Agreement have been
duly authorized and when issued and delivered to the Underwriters will
have been validly issued and will be fully paid and nonassessable
(except as described in the Registration Statement). No person is
entitled to any preemptive or other similar rights with respect to the
Shares.
(iv) The Trust is duly registered with the Commission
under the Investment Company Act as a non-diversified, closed-end
management investment company, and, subject to the filing of the Final
Amendment, if not already filed, all action under the Securities Act,
the Investment Company Act, the Securities Act Rules and the Investment
Company Act Rules, as the case may be, necessary to make the public
offering and consummate the sale of the Shares as provided in this
Underwriting Agreement has or will have been taken by the Trust.
(v) The Trust has full power and authority to enter
into each of this Underwriting Agreement, the Investment Advisory
Agreement, the Custody Agreement and the Transfer Agency Agreement
(collectively, the "Trust Agreements") and to perform all of the terms
and provisions hereof and thereof to be carried out by it and (A) each
Trust Agreement has been duly and validly authorized, executed and
delivered by or on behalf of the Trust, (B) each Trust Agreement does
not violate in any material respect any of the applicable provisions of
the Investment Company Act, the Investment Advisers Act of 1940 (the
"Advisers Act"), the Investment Company Act Rules and the rules and
regulations adopted by the Commission under the Advisers Act (the
"Advisers Act Rules"), as the case may be, and (C) assuming due
authorization, execution and delivery by the other parties thereto,
each Trust Agreement constitutes the legal, valid and binding
obligation of the Trust enforceable in accordance with its terms, (1)
subject, as to enforcement, to applicable bankruptcy, insolvency and
similar
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laws affecting creditors' rights generally and to general equitable
principles (regardless of whether enforcement is sought in a proceeding
in equity or at law) and (2) except as rights to indemnity thereunder
may be limited by federal or state securities laws.
(vi) None of (A) the execution and delivery by the
Trust of the Trust Agreements, (B) the issue and sale by the Trust of
the Shares as contemplated by this Underwriting Agreement and (C) the
performance by the Trust of its obligations under any of the Trust
Agreements or consummation by the Trust of the other transactions
contemplated by the Trust Agreements conflicts with or will conflict
with, or results or will result in a breach of, the Declaration of
Trust or the By-laws of the Trust or any agreement or instrument to
which the Trust is a party or by which the Trust is bound, or any law,
rule or regulation, or order of any court, governmental
instrumentality, securities exchange or association or arbitrator,
whether foreign or domestic, applicable to the Trust, other than state
securities or "blue sky" laws applicable in connection with the
purchase and distribution of the Shares by the Underwriters pursuant to
this Underwriting Agreement.
(vii) The Trust is not currently in breach of, or in
default under, any written agreement or instrument to which it is a
party or by which it or its property is bound or affected.
(viii) No person has any right to the registration of
any securities of the Trust because of the filing of the registration
statement.
(ix) No consent, approval, authorization or order of
any court or governmental agency or body or securities exchange or
association, whether foreign or domestic, is required by the Trust for
the consummation by the Trust of the transactions to be performed by
the Trust or the performance by the Trust of all the terms and
provisions to be performed by or on behalf of it in each case as
contemplated in the Trust Agreements, except such as (A) have been
obtained under the Securities Act, the Investment Company Act, the
Advisers Act, the Securities Act Rules, the Investment Company Act
Rules, and the Advisers Act Rules, and (B) may be required by the New
York Stock Exchange or under state securities or "blue sky" laws, in
con-
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nection with the purchase and distribution of the Shares by the
Underwriters pursuant to this Underwriting Agreement.
(x) The Shares are duly authorized for listing,
subject to official notice of issuance, on the American Stock Exchange
and the Trust's Registration Statement on Form 8-A, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), has
become effective.
(xi) Deloitte & Touche LLP, whose report appears in
the Prospectus, are independent public accountants with respect to the
Trust as required by the Securities Act, the Investment Company Act,
the Securities Act Rules and the Investment Company Act Rules.
(xii) The statement of assets and liabilities
included in the Registration Statement and the Prospectus presents
fairly in all material respects, in accordance with generally accepted
accounting principles in the United States applied on a consistent
basis, the financial position of the Trust as of the date indicated.
(xiii) The Trust will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with management's general
or specific authorization; (B) transactions are recorded as necessary
to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability
for assets; (C) access to assets is permitted only in accordance with
management's general or specific authorization; and (D) the recorded
accountability for assets is compared with existing assets through an
asset reconciliation procedure or otherwise at reasonable intervals and
appropriate action is taken with respect to any differences.
(xiv) Since the date as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, business affairs or business of the
Trust, whether or not arising in the ordinary course of business, (B)
there have been no transactions entered into by the Trust other than
those in the ordinary course of its business and (C) there has been no
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dividend or distribution of any kind declared, paid or made on any
class of its capital shares.
(xv) There is no action, suit or proceeding before or
by any court, commission, regulatory body, administrative agency or
other governmental agency or body, foreign or domestic, now pending,
or, to the knowledge of the Trust, threatened against or affecting the
Trust, which (A) might result in any material adverse change in the
condition, financial or otherwise, business affairs or business
prospects of the Trust or might materially adversely affect the
properties or assets of the Trust or (B) is of a character required to
be described in the Registration Statement or the Prospectus; and there
are no contracts, franchises or other documents that are of a character
required to be described in, or that are required to be filed as
exhibits to, the Registration Statement that have not been described or
filed as required.
(xvi) Except for stabilization transactions conducted
by the Underwriters, and except for tender offers, Share repurchases
and the issuance or purchase of Shares pursuant to the Trust's dividend
reinvestment plan ("DRP") effected following the date on which the
distribution of the Shares is completed in accordance with the policies
of the Trust as set forth in the Prospectus, the Trust has not taken
and will not take, directly or indirectly, any action designed or which
might be reasonably expected to cause or result in, or which will
constitute, stabilization or manipulation of the price of the Shares of
Beneficial Interest in violation of applicable federal securities laws.
(xvii) The Trust intends to direct the investment of
the proceeds of the offering of the Shares in such a manner as to
comply with the requirements of Subchapter M of the Internal Revenue
Code of 1986, as amended (the "Code").
(xviii) To the knowledge of the Trust after due
inquiry, no advertising, sales literature or other promotional
materials (excluding road show slides or road show tapes) were
authorized or prepared by or on behalf of the Trust and the Investment
Adviser or any representative thereof for use in connection with the
public offering or sale of the Shares other than the definitive client
brochure and
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the broker selling memo which were filed with the NASD on December 15,
1998, a draft prospecting letter which was filed with the NASD on
December 21, 1998 and a draft of a prospecting letter made available on
an Internet web site maintained by the Investment Adviser
(collectively, the "sales materials"); the sales materials and any road
show slides or road show tapes complied and comply in all material
respects with the applicable requirements of the Securities Act, the
Securities Act Rules and the rules and interpretations of the NASD; and
no broker kits, road show slides, road show tapes or sales materials
authorized or prepared by the Trust or authorized or prepared on behalf
of the Trust by the Investment Adviser or any representative thereof
for use in connection with the public offering or sale of the Shares
contained or contains any untrue statement of a material fact or
omitted or omits to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading.
(b) The Investment Adviser represents to each
Underwriter as follows:
(i) The Investment Adviser has been duly formed, is
validly existing as a business trust under the laws of the Commonwealth
of Massachusetts with full power and authority to conduct all of the
activities conducted by it, to own or lease all of the assets owned or
leased by it and to conduct its business as described in the
Registration Statement and Prospectus, and the Investment Adviser is
duly licensed and qualified to do business and in good standing in each
jurisdiction in which it is required to be so qualified, except to the
extent that failure to be so qualified or be in good standing would not
have a material adverse affect on the Investment Adviser; and the
Investment Adviser owns, possesses or has obtained and currently
maintains all governmental licenses, permits, consents, orders,
approvals and other authorizations, whether foreign or domestic,
necessary to carry on its business as contemplated in the Registration
Statement and the Prospectus.
(ii) The Investment Adviser is (A) duly registered as
an investment adviser under the Advisers Act and (B) not prohibited by
the Advisers Act, the Investment Company Act, the Advisers Act Rules or
the Investment Company Act Rules from acting as the in-
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vestment adviser for the Trust as contemplated by the Investment
Advisory Agreement, the Registration Statement and the Prospectus.
(iii) The Investment Adviser has full power and
authority to enter into each of this Underwriting Agreement, the
Investment Advisory Agreement, the Administration Agreement and the
Shareholder Services Agreement dated as of January 29, 1999 (the
"Shareholder Services Agreement") between the Investment Adviser and
PaineWebber Incorporated (collectively, this Underwriting Agreement,
the Investment Advisory Agreement, the Administration Agreement and the
Shareholder Services Agreement being referred to as the "Investment
Adviser Agreements") and to carry out all the terms and provisions
hereof and thereof to be carried out by it; and each Investment Adviser
Agreement has been duly and validly authorized, executed and delivered
by the Investment Adviser; none of the Investment Adviser Agreements
violate in any material respect any of the applicable provisions of the
Investment Company Act, the Advisers Act, the Investment Company Act
Rules and the Advisers Act Rules; and assuming due authorization,
execution and delivery by the other parties thereto, each Investment
Adviser Agreement constitutes a legal, valid and binding obligation of
the Investment Adviser, enforceable in accordance with its terms, (1)
subject, as to enforcement, to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general
equitable principles (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (2) except as rights to indemnity
thereunder may be limited by federal or state securities laws.
(iv) Neither (A) the execution and delivery by the
Investment Adviser of any Investment Adviser Agreement by the
Investment Adviser nor (B) the consummation by the Investment Adviser
of the transactions contemplated by, or the performance of its
obligations under any Investment Adviser Agreement conflicts or will
conflict with, or results or will result in a breach of, the Agreement
and Declaration of Trust or By-Laws of the Investment Adviser or any
agreement or instrument to which the Investment Adviser is a party or
by which the Investment Adviser is bound, or any law, rule or
regulation, or order of any court, governmental instrumentality,
securities
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exchange or association or arbitrator, whether foreign or domestic,
applicable to the Investment Adviser.
(v) No consent, approval, authorization or order of
any court, governmental agency or body or securities exchange or
association, whether foreign or domestic, is required for the
consummation of the transactions contemplated in, or the performance by
the Investment Adviser of its obligations under, any Investment Adviser
Agreement, as the case may be, except such as (A) have been obtained
under the Investment Company Act, the Advisers Act, the Securities Act,
the Investment Company Act Rules, the Advisers Act Rules and the
Securities Act Rules, and (B) may be required by the New York Stock
Exchange or under state securities or "blue sky" laws, in connection
with the purchase and distribution of the Shares by the Underwriters
pursuant to this Underwriting Agreement.
(vi) The description of the Investment Adviser and
its business, and the statements attributable to the Investment
Adviser, in the Registration Statement and the Prospectus complies with
the requirements of the Securities Act, the Investment Company Act, the
Securities Act Rules and the Investment Company Act Rules and do not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading.
(vii) There is no action, suit or proceeding before
or by any court, commission, regulatory body, administrative agency or
other governmental agency or body, foreign or domestic, now pending or,
to the knowledge of the Investment Adviser, threatened against or
affecting the Investment Adviser of a nature required to be disclosed
in the Registration Statement or Prospectus or that might reasonably be
expected to result in any material adverse change in the condition,
financial or otherwise, business affairs or business prospects of the
Investment Adviser or the ability of the Investment Adviser to fulfill
its respective obligations under any Investment Adviser Agreement.
(viii) Except for stabilization activities conducted
by the Underwriters and except for tender offers, Share repurchases and
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the issuance or purchase of Shares pursuant to the Trust's DRP effected
following the date on which the distribution of the Shares is completed
in accordance with the policies of the Trust as set forth in the
Prospectus, the Investment Adviser has not taken and will not take,
directly or indirectly, any action designed, or which might reasonably
be expected to cause or result in, or which will constitute,
stabilization or manipulation of the price of the Shares of Beneficial
Interest in violation of applicable federal securities laws.
(ix) In the event that the Trust or the Investment
Adviser makes available any promotional materials (other than the sales
materials) intended for use only by qualified broker-dealers and
registered representatives thereof by means of an Internet web site or
similar electronic means, the Investment Adviser will install and
maintain pre-qualification and password-protection or similar
procedures which will effectively prohibit access to such promotional
materials by persons other than qualified broker-dealers and registered
representatives thereof.
5. Agreements of the Parties.
(a) If the registration statement relating to the
Shares has not yet become effective, the Trust will promptly file the Final
Amendment, if not previously filed, with the Commission, and will use its best
efforts to cause such registration statement to become effective and, as soon as
the Trust is advised, will advise the Representative when the Registration
Statement or any amendment thereto has become effective. If the Registration
Statement has become effective and the Prospectus contained therein omits
certain information at the time of effectiveness pursuant to Rule 430A of the
Securities Act Rules, the Trust will file a 430A Prospectus pursuant to Rule
497(h) of the Securities Act Rules as promptly as practicable, but no later than
the second business day following the earlier of the date of the determination
of the offering price of the Shares or the date the Prospectus is first used
after the Effective Date. If the Registration Statement has become effective and
the Prospectus contained therein does not so omit such information, the Trust
will file a Prospectus pursuant to Rule 497(b) or (j) of the Securities Act
Rules as promptly as practicable, but no later than the fifth business day
following the date of the later of the Effective Date or the commencement of the
public offering of the Shares after the Effective Date. In either case, the
Trust will provide the Representatives satisfactory evidence of the filing. The
Trust will not file with the Commission any Prospectus or any other amendment
(except any post-effective amendment which is filed with the Commission
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after the later of (x) one year from the date of this Underwriting Agreement or
(y) the date on which distribution of the Shares is completed) or supplement to
the Registration Statement or the Prospectus unless a copy has first been
submitted to the Managing Representative a reasonable time before its filing and
the Managing Representative has not objected to it in writing within a
reasonable time after receiving the copy.
(b) For the period of three years from the date
hereof, the Trust will advise the Representatives promptly (1) of the issuance
by the Commission of any order in respect of the Trust or the Investment Adviser
which relates to the Trust, or which relates to any material arrangements or
proposed material arrangements involving the Trust or the Investment Adviser,
(2) of the initiation or threatening of any proceedings for, or receipt by the
Trust of any notice with respect to, the suspension of the qualification of the
Shares for sale in any jurisdiction or the issuance of any order by the
Commission suspending the effectiveness of the Registration Statement, (3) of
receipt by the Trust, or any representative or attorney of the Trust, of any
other communication from the Commission relating in any material way to the
Trust, the Registration Statement, the Notification, any Preliminary Prospectus,
the Prospectus or to the transactions contemplated by this Underwriting
Agreement and (4) the issuance by any court, regulatory body, administrative
agency or other governmental agency or body, whether foreign or domestic, of any
order, ruling or decree, or the threat to initiate any proceedings with respect
thereto, regarding the Trust, which relates in any material way to the Trust or
any material arrangements or proposed material arrangements involving the Trust.
The Trust will make every reasonable effort to prevent the issuance of any order
suspending the effectiveness of the Registration Statement and, if any such
order is issued, to obtain its lifting as soon as possible.
(c) If not delivered prior to the date of this
Underwriting Agreement, the Trust will deliver to the Representatives, without
charge, a signed copy of the registration statement and the Notification and of
any amendments (except any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of this Underwriting
Agreement or (y) the date on which the distribution of the Shares is completed)
to either the Registration Statement or the Notification (including all exhibits
filed with any such document) and as many conformed copies of the registration
statement and any amendments thereto (except any post-effective amendment which
is filed with the Commission after the later of (x) one year from the date of
this Underwriting Agreement or (y) the date on which the distribution of the
Shares is completed) (excluding exhibits) as the Representatives may reasonably
request.
16
(d) During such period as a prospectus is required by
law to be delivered by an underwriter or a dealer, the Trust will deliver,
without charge, to the Representatives, the Underwriters and any dealers, at
such office or offices as the Representatives may designate, as many copies of
the Prospectus as the Representatives may reasonably request, and, if any event
occurs during such period as a result of which it is necessary to amend or
supplement the Prospectus, in order to make the statements therein, in light of
the circumstances existing when such Prospectus is delivered to a purchaser of
Shares, not misleading in any material respect, or if during such period it is
necessary to amend or supplement the Prospectus to comply with the Securities
Act, the Investment Company Act, the Securities Act Rules or the Investment
Company Act Rules, the Trust promptly will prepare, submit to the Managing
Representative, file with the Commission and deliver, without charge, to the
Underwriters and to dealers (whose names and addresses the Representatives will
furnish to the Trust) to whom Shares may have been sold by the Underwriters, and
to other dealers on request, amendments or supplements to the Prospectus so that
the statements in such Prospectus, as so amended or supplemented, will not, in
light of the circumstances existing when such Prospectus is delivered to a
purchaser, be misleading in any material respect and will comply with the
Securities Act, the Investment Company Act, the Securities Act Rules and the
Investment Company Act Rules. Delivery by the Underwriters of any such
amendments or supplements to the Prospectus will not constitute a waiver of any
of the conditions in Section 6 hereof.
(e) The Trust will make generally available to
holders of the Trust's securities, as soon as practicable but in no event later
than the last day of the 18th full calendar month following the calendar quarter
in which the Effective Date falls, an earnings statement, if applicable,
satisfying the provisions of Section 11(a) of the Securities Act and, at the
option of the Trust, Rule 158 of the Securities Act Rules.
(f) The Trust will take such actions as the
Representatives reasonably request in order to qualify the Shares for offer and
sale under the securities or "blue sky" laws of such jurisdictions as the
Representatives reasonably designate; provided that the Trust shall not be
required in connection therewith or as a condition thereof to qualify as a
foreign corporation or to execute a general consent to service of process in any
jurisdiction.
(g) If the transactions contemplated by this
Underwriting Agreement are consummated, the Trust shall pay all costs and
expenses incident to
17
the performance of the obligations of the Trust under this Underwriting
Agreement (to the extent such expenses do not, in the aggregate, exceed $0.03
per Share), including but not limited to costs and expenses of or relating to
(1) the preparation, printing and filing of the registration statement and
exhibits to it, each Preliminary Prospectus, the Prospectus and all amendments
and supplements thereto, (2) the issuance of the Shares and the preparation and
delivery of certificates for the Shares, (3) the registration or qualification
of the Shares for offer and sale under the securities or "blue sky" laws of the
jurisdictions referred to in the foregoing paragraph, including the fees and
disbursements of counsel for the Underwriters in that connection, and the
preparation and printing of preliminary and supplemental "blue sky" memoranda,
(4) the furnishing (including costs of design, production, shipping and mailing)
to the Underwriters and dealers of copies of each Preliminary Prospectus
relating to the Shares, the sales materials, the Prospectus, and all amendments
or supplements to the Prospectus, and of the other documents required by this
Section to be so furnished, (5) the filing requirements of the National
Association of Securities Dealers, Inc., in connection with its review of the
financing, including filing fees and the fees, disbursements and other charges
of counsel for the Underwriters in that connection, (6) all transfer taxes, if
any, with respect to the sale and delivery of the Shares to the Underwriters,
(7) the listing of the Shares on the New York Stock Exchange, (8) the transfer
agent for the Shares, and (9) in addition to the foregoing, an aggregate
reimbursement of up to [ ] as partial reimbursement of the costs and expenses of
the Underwriters. To the extent the foregoing costs and expenses incident to the
performance of the obligations of the Trust under this Underwriting Agreement
exceed, in the aggregate, $0.03 per Share, Xxxxx Xxxxx or an affiliate will pay
all such excess costs and expenses.
(h) If the transactions contemplated by this
Underwriting Agreement are not consummated, except as otherwise provided herein,
no party will be under any liability to any other party, except that (1) if this
Underwriting Agreement is terminated by (x) the Trust or the Investment Adviser
pursuant to any of the provisions hereof (otherwise than pursuant to Section 8
hereof) or (y) by the Representatives or the Underwriters because of any
inability, failure or refusal on the part of the Trust or the Investment Adviser
to comply with any material terms or because any of the conditions in Section 6
are not satisfied, Xxxxx Xxxxx or an affiliate and the Trust, jointly and
severally, will reimburse the Underwriters for all out-of-pocket expenses
(including the reasonable fees, disbursements and other charges of their
counsel) reasonably incurred by them in connection with the proposed purchase
and sale of the Shares and (2) no Underwriter who has failed or refused to
purchase the Shares agreed to be purchased by it under this Underwriting
Agreement, in breach of its obli-
18
gations pursuant to this Underwriting Agreement, will be relieved of liability
to the Trust and the Investment Adviser and the other Underwriters for damages
occasioned by its default.
(i) Without the prior written consent of the
Representatives, the Trust will not offer, sell or register with the Commission,
or announce an offering of, any equity securities of the Trust, within 180 days
after the Effective Date, except for the Shares as described in the Prospectus
and any issuances of Shares of Beneficial Interest pursuant to the dividend
reinvestment plan established by the Trust and except in connection with any
offering of preferred shares of beneficial interest as contemplated by the
Prospectus.
(j) The Trust will use its best efforts to list the
Shares on the New York Stock Exchange and comply with the rules and regulations
of such exchange.
(k) The Trust will direct the investment of the net
proceeds of the offering of the Shares in such a manner as to comply with the
investment objective and policies of the Trust as described in the Prospectus.
6. Conditions of the Underwriters' Obligations. The
obligations of the Underwriters to purchase the Shares are subject to the
accuracy on the date of this Underwriting Agreement, and on the Closing Dates,
of the representations of the Trust and the Investment Adviser in this
Underwriting Agreement, to the accuracy and completeness of all statements made
by the Trust or the Investment Adviser or any of their respective officers in
any certificate delivered to the Representatives or their counsel pursuant to
this Underwriting Agreement, to performance by the Trust and the Investment
Adviser of their respective obligations under this Underwriting Agreement and to
each of the following additional conditions:
(a) The registration statement must have become
effective by 5:30 p.m., New York City time, on the date of this Underwriting
Agreement or such later date and time as the Managing Representative consents to
in writing. The Prospectus must have been filed in accordance with Rule 497(b),
(h) or (j), as the case may be, of the Securities Act Rules.
(b) No order suspending the effectiveness of the
Registration Statement may be in effect and no proceedings for such purpose may
be pending before or, to the knowledge of counsel to the Underwriters,
threatened by the Commis-
19
sion, and any requests for additional information on the part of the Commission
(to be included in the Registration Statement or the Prospectus or otherwise)
must be complied with or waived to the reasonable satisfaction of the Managing
Representative.
(c) Since the dates as of which information is given in
the Registration Statement and the Prospectus, (1) there must not have been any
material change in the Shares of Beneficial Interest or liabilities of the Trust
except as set forth in or contemplated by the Prospectus; (2) there must not
have been any material adverse change in the general affairs, prospects,
management, business, financial condition or results of operations of the Trust
or the Investment Adviser whether or not arising from transactions in the
ordinary course of business as set forth in or contemplated by the Prospectus;
(3) the Trust must not have sustained any material loss or interference with its
business from any court or from legislative or other governmental action, order
or decree, whether foreign or domestic, or from any other occurrence not
described in the Registration Statement and Prospectus; and (4) there must not
have occurred any event that makes untrue or incorrect in any material respect
any statement or information contained in the Registration Statement or
Prospectus or that is not reflected in the Registration Statement or Prospectus
but should be reflected therein in order to make the statements or information
therein (in the case of the Prospectus, in light of the circumstances in which
they were made) not misleading in any material respect; if, in the judgment of
the Managing Representative, any such development referred to in clause (1),
(2), (3) or (4) of this paragraph (c) makes it impracticable or inadvisable to
consummate the sale and delivery of the Shares pursuant to this Underwriting
Agreement by the Underwriters, at the initial public offering price of the
Shares.
(d) The Representatives must have received on each
Closing Date a certificate, dated such date, of the President or a
Vice-President and the chief financial or accounting officer of each of the
Trust and the Investment Adviser certifying that (1) the signers have carefully
examined the Registration Statement, the Prospectus, and this Underwriting
Agreement, (2) the representations of the Trust (with respect to the
certificates from such Trust officers) and the representations of the Investment
Adviser (with respect to the certificates from such officers of the Investment
Adviser) in this Underwriting Agreement are accurate on and as of the date of
the certificate, (3) there has not been any material adverse change in the
general affairs, prospects, management, business, financial condition or results
of operations of the Trust (with respect to the certificates from such Trust
officers) or the Investment Adviser (with respect to the certificates from such
officers of the Investment Adviser), which change would materially and adversely
affect the ability of the Trust or the In-
20
vestment Adviser, as the case may be, to fulfill its obligations under this
Underwriting Agreement or the Investment Advisory Agreement, whether or not
arising from transactions in the ordinary course of business, (4) with respect
to the Trust only, to the knowledge of such officers after reasonable
investigation, no order suspending the effectiveness of the Registration
Statement, prohibiting the sale of any of the Shares or otherwise having a
material adverse effect on the Trust has been issued and no proceedings for any
such purpose are pending before or threatened by the Commission or any other
regulatory body, whether foreign or domestic, (5) to the knowledge of the
officers of the Investment Adviser, after reasonable investigation, no order
having a material adverse effect on the ability of the Investment Adviser to
fulfill its obligations under this Underwriting Agreement or the Investment
Advisory Agreement, as the case may be, has been issued and no proceedings for
any such purpose are pending before or threatened by the Commission or any other
regulatory body, whether foreign or domestic, and (6) each of the Trust (with
respect to the certificates from such Trust officers) and the Investment Adviser
(with respect to the certificates from such officers of the Investment Adviser)
has performed all of its respective agreements that this Underwriting Agreement
requires it to perform by such Closing Date (to the extent not waived in writing
by the Managing Representative).
(e) The Representatives must receive on each Closing Date
the opinions dated such Closing Date substantially in the form of Annexes A, B
and C to this Underwriting Agreement from the counsel identified in each such
Annex.
(f) The Representatives must receive on each Closing Date
from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP and its affiliated entities, its
counsel, an opinion dated such Closing Date with respect to the Trust, the
Shares, the Registration Statement and the Prospectus, this Underwriting
Agreement and the form and sufficiency of all proceedings taken in connection
with the sale and delivery of the Shares. Such opinion and proceedings shall
fulfill the requirements of this Section 6(f) only if such opinion and
proceedings are satisfactory in all respects to the Representatives. The Trust
and the Investment Adviser must have furnished to such counsel such documents as
counsel may reasonably request for the purpose of enabling them to render such
opinion.
(g) The Representatives must receive on the date this
Underwriting Agreement is signed and delivered by the Representatives a signed
letter, dated such date, substantially in the form of Annex D to this
Underwriting Agreement from the firm of accountants designated in such Annex.
The Representatives also must receive on each Closing Date a signed letter from
such accountants, dated as of
21
such Closing Date, confirming on the basis of a review in accordance with the
procedures set forth in their earlier letter that nothing has come to their
attention during the period from a date not more than five business days before
the date of this Underwriting Agreement, specified in the letter, to a date not
more than five business days before such Closing Date, that would require any
change in their letter referred to in the foregoing sentence.
All opinions, letters, evidence and certificates
mentioned above or elsewhere in this Underwriting Agreement will comply only if
they are in form and scope reasonably satisfactory to counsel for the
Underwriters, provided that any such documents, forms of which are annexed
hereto, shall be deemed satisfactory to such counsel if substantially in such
form.
22
7. Indemnification and Contribution.
23
(a) Each of the Trust and the Investment Adviser,
jointly and severally, will indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of such Underwriter and each person,
if any, who controls such Underwriter within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act from and against any and all
losses, claims, liabilities, expenses and damages (including, but not limited
to, any and all investigative, legal and other expenses reasonably incurred in
connection with, and any and all amounts paid in settlement of, any action, suit
or proceeding between any of the indemnified parties and any indemnifying
parties or between any indemnified party and any third party, or otherwise, or
any claim asserted), to which such Underwriter or any such person, or any of
them, may become subject under the Securities Act, the Exchange Act, the
Investment Company Act, the Advisers Act or other federal or state statutory law
or regulation, at common law or otherwise, whether foreign or domestic, insofar
as such losses, claims, liabilities, expenses or damages arise out of or are
based on (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Preliminary Prospectus, the
Prospectus, the sales materials, or any amendment or supplement to the
Registration Statement, the Preliminary Prospectus, the Prospectus, the sales
materials or in any documents filed under the Exchange Act and deemed to be
incorporated by reference into the Registration Statement, the Preliminary
Prospectus, the Prospectus, or in any application or other document executed by
or on behalf of the Trust or based on written information furnished by or on
behalf of the Trust filed in any jurisdiction in order to qualify the Shares
under the securities laws thereof or filed with the Commission, (ii) the
omission or alleged omission to state, in any or all such documents, a material
fact required to be stated therein or necessary to make the statements therein
not misleading or (iii) any act or failure to act or any alleged act or failure
to act by such Underwriter in connection with, or relating in any manner to, the
Shares or the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, liability, expense or damage arising out of or
based upon matters covered by clause (i) or (ii) above (provided, however, that
neither the Trust nor the Investment Adviser shall be liable under this clause
(iii) to the extent it is finally judicially determined by a court of competent
jurisdiction that such loss, claim, liability, expense or damage resulted
directly from any such acts or failures to act undertaken or omitted to be taken
by such Underwriter through its gross negligence, bad faith or willful
misconduct); provided that neither the Trust nor the Investment Adviser will be
liable to the extent that such losses, claims, liabilities, expenses or damages
are based on an untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information relating to any
underwriter furnished in writing to the Trust by the Representative on behalf of
Underwriters expressly for inclusion in the Regis-
24
tration Statement, the Preliminary Prospectus or the Prospectus. This indemnity
agreement will be in addition to any liability that the Trust or the Investment
Adviser might otherwise have.
(b) Each Underwriter will indemnify and hold harmless
the Trust and the Investment Adviser, each person, if any, who controls the
Trust or the Investment Adviser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, each trustee of the Trust and
each officer of the Trust who signs the Registration Statement to the same
extent as the foregoing indemnity from the Trust or the Investment Adviser to
the Underwriter, but only insofar as losses, claims, liabilities, expenses or
damages arise out of or are based on any untrue statement or omission or alleged
untrue statement or omission made in reliance on and in conformity with
information relating to such Underwriter furnished in writing to the Trust by
such Underwriter expressly for use in the Registration Statement, the
Preliminary Prospectus or Prospectus. This indemnity will be in addition to any
liability that such Underwriter might otherwise have; provided, however, that in
no case shall such Underwriter be liable or responsible for any amount in excess
of the fees and commissions received by the Underwriter.
(c) Any party that proposes to assert the right to be
indemnified under this Section 7 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section 7, notify
each such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission to so notify such indemnifying party
will not relieve it from any liability that it may have to any indemnified party
under the foregoing provision of this Section 7 unless, and only to the extent
that, such omission results in the forfeiture of substantive rights or defenses
by the indemnifying party. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the extent that it
elects by delivering written notice to the indemnified party promptly after
receiving notice of the commencement of the action from the indemnified party,
jointly with any other indemnifying party similarly notified, to assume the
defense of the action, with counsel reasonably satisfactory to the indemnified
party, and after notice from the indemnifying party to the indemnified party of
its election to assume the defense, the indemnifying party will not be liable to
the indemnified party for any legal or other expenses except as provided below
and except for the reasonable costs of investigation subsequently incurred by
the indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the
25
fees, disbursements and other charges of such counsel will be at the expense of
such indemnified party unless (1) the employment of counsel by the indemnified
party has been authorized in writing by the indemnifying party, (2) the
indemnified party has reasonably concluded (based on the advice of counsel) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party
(3) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. Subject to the requirements of
Investment Company Act Release No. 11330, all such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are
incurred. It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm admitted to practice in such jurisdiction at any one time for
all such indemnified party or parties. An indemnifying party will not be liable
for any settlement of any action or claim effected without its written consent
(which consent will not be unreasonably withheld). No indemnifying party shall,
without the prior written consent of each indemnified party, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding relating to the matters contemplated by this Section
7 (whether or not any indemnified party is a party thereto), unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising or that may arise out of such
claim, action or proceeding.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in this
Section 7 is applicable but for any reason is held to be unavailable from the
Trust, the Investment Adviser or the Underwriters, the Trust, the Investment
Adviser and the Underwriters will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Trust and the Investment Adviser from
persons other than the Underwriter, such as persons who control the Trust or the
Investment Adviser within the meaning of the Securities Act or the Exchange Act,
26
officers of the Trust who signed the Registration Statement and directors of the
Trust, who may also be liable for contribution) to which the Trust, the
Investment Adviser and the Underwriters may be subject in such proportion as
shall be appropriate to reflect the relative benefits received by the Trust and
the Investment Adviser on the one hand and the Underwriters on the other. The
relative benefits received by the Trust and the Investment Adviser (treated
jointly for this purpose as one person) on the one hand and the Underwriters on
the other hand shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Trust
bear to the total fees and commissions received by the Underwriters. If, but
only if, the allocation provided by the foregoing sentence is not permitted by
applicable law, the allocation of contribution shall be made in such proportion
as is appropriate to reflect not only such relative benefits referred to in the
foregoing sentence but also the relative fault of the Trust and the Investment
Adviser (treated jointly for this purpose as one person) on the one hand and the
Underwriters on the other hand in connection with respect to the statements or
omissions or alleged statements or omissions that resulted in the losses,
claims, liabilities, expenses or damages (including any investigative, legal or
other expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted), as well as
any other relevant equitable considerations appropriate in the circumstances.
Such relative fault of the parties shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Trust, the Investment Adviser or the Underwriters, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission and any other equitable considerations
appropriate in the circumstances. The Trust, the Investment Adviser and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 7(d) were to be determined by pro rata allocation or by
any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, liability, expense or damage, or action in
respect thereof, referred to above in this Section 7(d) shall be deemed to
include, for purposes of this Section 7(d) any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding any other provisions of
this Section 7(d), the Underwriters shall not be required to contribute any
amount in excess of the fees and commissions received by them and no person
found guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7(d), any person who controls a party to
27
this Agreement within the meaning of the Securities Act will have the same
rights to contribution as that party, and each trustee of the Trust and each
officer of the Trust who signed the Registration Statement will have the same
rights to contribution as the Trust, subject in each case to the provisions
hereof. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action against such party in respect of which a
claim for contribution may be made under this Section 7(d), notify such party or
parties from whom contribution may be sought, but the omission so to notify will
not relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have under this Section 7(d). No party will be
liable for contribution with respect to any action or claim settled without its
written consent (which consent shall not be unreasonably withheld). The
Underwriters' obligations to contribute pursuant to this Section 7 are several
in proportion to the respective number of Firm Shares set forth opposite their
names in Schedule 1 (or such number of Firm Shares as determined pursuant to
Section 9 hereof) and not joint.
(e) Notwithstanding any other provisions in this Section
7, no party shall be entitled to indemnification or contribution under this
Agreement against any loss, claim, liability, expense or damage arising by
reason of such person's willful misfeasance, bad faith or gross negligence in
the performance of its duties hereunder, or by reason of such person's reckless
disregard of such person's obligations and duties hereunder.
(f) The Trust and the Investment Adviser acknowledge that
the statements with respect to (1) the public offering of the Shares as set
forth on the cover page of and (2) the statements relating to stabilization and
to selling concessions and reallowances of selling concessions under the caption
"Underwriting" in the Prospectus constitute the only information furnished in
writing to the Trust by the Representatives on behalf of the Underwriters
expressly for use in such document. The Underwriters severally confirm that
these statements are correct in all material respects and were so furnished by
or on behalf of the Underwriters severally for use in the Prospectus.
8. Termination. This Underwriting Agreement may be terminated by
the Managing Representative by notifying the Trust at any time:
(a) before the later of the effectiveness of the
Registration Statement and the time when any of the Shares are first generally
offered pursuant to
28
this Underwriting Agreement by the Managing Representative to dealers by letter
or telegram;
(b) at or before any Closing Date if, in the sole
judgment of the Managing Representative, payment for and delivery of any Shares
is rendered impracticable or inadvisable because trading in the equity
securities of the Trust is suspended by the Commission or by the principal
exchange that lists the Shares, trading in securities generally on the New York
Stock Exchange or the Nasdaq Stock Market shall have been suspended or limited
or minimum or maximum prices shall have been generally established on such
exchange or over-the-counter market, or, additional material governmental
restrictions, not in force on the date of this Underwriting Agreement, have been
imposed upon trading in securities or trading has been suspended on any U.S.
securities exchange, a general banking moratorium has been established by U.S.
federal or New York authorities or any material adverse change in the financial
or securities markets in the United States or in political, financial or
economic conditions in the United States or any outbreak or material escalation
of hostilities or declaration by the United States of a national emergency or
war or other calamity or crisis shall have occurred the effect of any of which
is such as to make it, in the sole judgement of the Managing Representative,
impracticable or inadvisable to market the Shares on the terms and in the manner
contemplated by the Prospectus; or
(c) at or before any Closing Date, if any of the
conditions specified in Section 6 have not been fulfilled when and as required
by this Underwriting Agreement.
9. Substitution of Underwriters. If one or more of the
Underwriters fails (other than for a reason sufficient to justify the
termination of this Underwriting Agreement) to purchase on any Closing Date the
Shares agreed to be purchased on such Closing Date by such Underwriter or
Underwriters, the Managing Representative may find one or more substitute
underwriters to purchase such Shares or make such other arrangements as the
Managing Representative deems advisable, or one or more of the remaining
Underwriters may agree to purchase such Shares in such proportions as may be
approved by the Managing Representative, in each case upon the terms set forth
in this Underwriting Agreement. If no such arrangements have been made within 36
hours after such Closing Date, and
(a) the number of Shares to be purchased by the
defaulting Underwriters on such Closing Date does not exceed 10% of the Shares
that the Underwriters are obligated to purchase on such Closing Date, each of
the nondefaulting
29
Underwriters will be obligated to purchase such Shares on the terms set forth in
this Underwriting Agreement in proportion to their respective obligations under
this Underwriting Agreement, or
(b) the number of Shares to be purchased by the
defaulting Underwriters on such Closing Date exceeds 10% of the Shares to be
purchased by all the Underwriters on such Closing Date, the Trust will be
entitled to an additional period of 24 hours within which to find one or more
substitute underwriters reasonably satisfactory to the Managing Representative
to purchase such Shares on the terms set forth in this Underwriting Agreement.
In any such case, either the Managing Representative or the
Trust will have the right to postpone the applicable Closing Date for not more
than five business days in order that necessary changes and arrangements
(including any necessary amendments or supplements to the Registration Statement
or the Prospectus) may be effected by the Managing Representative and the Trust.
If the number of Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters exceeds 10% of the Shares that the Underwriters are
obligated to purchase on such Closing Date, and none of the nondefaulting
Underwriters or the Trust makes arrangements pursuant to this Section within the
period stated for the purchase of the Shares that the defaulting Underwriters
agreed to purchase, this Underwriting Agreement will terminate without liability
on the part of any nondefaulting Underwriter, the Trust or the Investment
Adviser, except as provided in Sections 5(g) and 7 hereof. This Section will not
affect the liability of any defaulting Underwriter to the Trust or the
nondefaulting Underwriters arising out of such default. A substitute underwriter
will become a Underwriter for all purposes of this Underwriting Agreement.
10. Miscellaneous.
(a) The reimbursement, indemnification and contribution
agreements in Sections 5(g) and 7 hereof and the representations of the Trust,
the Investment Adviser and the Underwriters in this Underwriting Agreement will
remain in full force and effect regardless of any termination of this
Underwriting Agreement. The reimbursement, indemnification and contribution
agreements in Sections 5(g) and 7 hereof and the representations and agreements
of the Trust, the Investment Adviser and the Underwriters in this Underwriting
Agreement shall survive the Closing Dates and shall remain in full force and
effect regardless of any investigation made by or on behalf of any Underwriter,
the Trust, the Investment Adviser or any controlling person and delivery of and
payment for the Shares.
30
(b) This Underwriting Agreement is for the benefit of the
Underwriters, the Trust, the Investment Adviser and their successors and
assigns, and, to the extent expressed in this Underwriting Agreement, for the
benefit of persons controlling any of the Underwriters, the Trust, the
Investment Adviser and directors and officers of the Trust and the Investment
Adviser, and their respective successors and assigns, and no other person,
partnership, association or corporation will acquire or have any right under or
by virtue of this Underwriting Agreement. The term "successors and assigns" does
not include any purchaser of the Shares from any Underwriter merely because of
such purchase.
(c) All notices and communications under this
Underwriting Agreement will be in writing, effective only on receipt and mailed
or delivered, by messenger, facsimile transmission or otherwise, to the
Representatives in care of PaineWebber Incorporated, Attn: Financial
Institutions Group, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, to
the Trust or the Investment Adviser at 00 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000,
Attn: Chief Legal Officer.
(d) This Underwriting Agreement may be signed in multiple
counterparts that taken as a whole constitute one agreement.
(e) This Underwriting Agreement will be governed by and
construed in accordance with the laws of the State of New York without reference
to choice of law principles thereof.
(f) A copy of the Agreement and Declaration of Trust of
each of the Trust and the Investment Adviser is on file with the Secretary of
The Commonwealth of Massachusetts, and notice hereby is given that this
Underwriting Agreement is executed on behalf of the respective Trustees of the
Trust and the Investment Adviser as Trustees and not individually and that the
obligations or arising out of this Underwriting Agreement are not binding upon
any of the Trustees or beneficiaries individually but are binding only upon the
respective assets and properties of the Trust and the Investment Adviser.
31
Please confirm that the foregoing correctly sets forth the
agreement between us.
Very truly yours,
Xxxxx Xxxxx Massachusetts Municipal
Income Trust
By:
-------------------------------------
Name:
Title:
Xxxxx Xxxxx Management
By:
-------------------------------------
Name:
Title:
Confirmed:
PaineWebber Incorporated
X.X. Xxxxxxx & Sons, Inc.
Prudential Securities Incorporated
Xxxxxxx Xxxxx Barney Inc.
Advest, Inc.
Xxxxxx Xxxxxxx Incorporated
As Representatives of the Underwriters
c/o PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
By: PaineWebber Incorporated
By:
--------------------------
Name:
Title:
Acting on behalf of itself
and the Underwriters
32
named in Schedule 1
33
SCHEDULE 1
NAME NUMBER OF FIRM SHARES TO BE
PURCHASED
PaineWebber Incorporated [_____________]
X.X. Xxxxxxx & Sons, Inc. [_____________]
Prudential Securities Incorporated [_____________]
Xxxxxxx Xxxxx Xxxxxx Inc. [_____________]
Advest, Inc. [_____________]
Xxxxxx Xxxxxxx Incorporated [_____________]
Total Underwriters
34
ANNEX A
FORM OF OPINION OF
XXXXXXXXXXX & XXXXXXXX LLC REGARDING THE TRUST
1. The Registration Statement and all post-effective amendments,
if any, are effective under the Securities Act and no stop order with respect
thereto has been issued and no proceeding for that purpose has been instituted
or, to the best of our knowledge, is threatened by the Commission. Any filing of
the Prospectus or any supplements thereto required under Rule 497 of the
Securities Act Rules prior to the date hereof have been made in the manner and
within the time required by such rule.
2. The Trust has been duly formed and is validly existing as a
Massachusetts business trust under the laws of the Commonwealth of
Massachusetts, with full power and authority to conduct all the activities
conducted by it, to own or lease all assets owned (or to be owned) or leased (or
to be leased) by it and to conduct its business as described in the Registration
Statement and Prospectus, and the Trust is duly licensed and qualified to do
business and in good standing in each jurisdiction in which its ownership or
leasing of property or its conducting of business requires such qualification,
and the Trust owns, possesses or has obtained and currently maintains all
governmental licenses, permits, consents, orders, approvals and other
authorizations, whether foreign or domestic, necessary to carry on its business
as contemplated in the Prospectus. The Trust has no subsidiaries.
3. The capitalization of the Trust is as set forth in the
Registration Statement and the Prospectus. The Shares of Beneficial Interest of
the Trust conform in all respects to the description of them in the Prospectus.
All the outstanding Shares of Beneficial Interest have been duly authorized and
are validly issued, fully paid and nonassessable. The Shares to be issued and
delivered to and paid for by the Underwriters in accordance with the
Underwriting Agreement against payment therefor as provided by the Underwriting
Agreement have been duly authorized and when issued and delivered to the
Underwriters will have been validly issued and will be fully paid and
nonassessable (except as described in the Registration Statement). No person is
entitled to any preemptive or other similar rights with respect to the Shares.
4. The Trust is duly registered with the Commission under the
Investment Company Act as a non-diversified, closed-end management investment
company and all action under the Securities Act, the Investment Company Act, the
Securities Act Rules and the Investment Company Act Rules, as the case may be,
necessary to make
35
the public offering and consummate the sale of the Shares as provided in the
Underwriting Agreement has or will have been taken by the Trust.
5. The Trust has full power and authority to enter into each of
the Underwriting Agreement, the Investment Advisory Agreement, the Custody
Agreement and the Transfer Agency Agreement (collectively, the "Trust
Agreements") and to perform all of the terms and provisions thereof to be
carried out by it and (A) each Trust Agreement has been duly and validly
authorized, executed and delivered by the Trust, (B) each Trust Agreement
complies in all material respects with all applicable provisions of the
Investment Company Act, the Advisers Act , the Investment Company Act Rules and
the Advisers Act Rules, as the case may be, and (C) assuming due authorization,
execution and delivery by the other parties thereto, each Trust Agreement
constitutes the legal, valid and binding obligation of the Trust enforceable in
accordance with its terms, (1) subject, as to enforcement, to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and to general equitable principles (regardless of whether enforcement is sought
in a proceeding in equity or at law) and (2) as rights to indemnity thereunder
may be limited by federal or state securities laws.
6. None of (A) the execution and delivery by the Trust of the
Trust Agreements, (B) the issue and sale by the Trust of the Shares as
contemplated by the Underwriting Agreement and (C) the performance by the Trust
of its obligations under the Trust Agreements or consummation by the Trust of
the other transactions contemplated by the Trust Agreements conflicts with or
will conflict with, or results or will result in a breach of, the Declaration of
Trust or the By-laws of the Trust or any agreement or instrument to which the
Trust is a party or by which the Trust is bound, or any law, rule or regulation,
or order of any court, governmental instrumentality, securities exchange or
association or arbitrator, whether foreign or domestic, applicable to the Trust,
except that we express no opinion as to the securities or "blue sky" laws
applicable in connection with the purchase and distribution of the Shares by the
Underwriters pursuant to the Underwriting Agreement.
7. The Trust is not currently in breach of, or in default under,
any written agreement or instrument to which it is a party or by which it or its
property is bound or affected.
8. No consent, approval, authorization or order of any court or
governmental agency or body or securities exchange or association, whether
foreign or domestic, is required by the Trust for the consummation by the Trust
of the transactions to be performed by the Trust or the performance by the Trust
of all the terms and provisions to be performed by or on behalf of it in each
case as contemplated in the Trust Agreements, except such as (A) have been
obtained under the Securities Act, the In-
36
vestment Company Act, the Advisers Act, the Securities Act Rules, the Investment
Company Act Rules and the Advisers Act Rules and (B) may be required by the New
York Stock Exchange or under state securities or "blue sky" laws in connection
with the purchase and distribution of the Shares by the Underwriters pursuant to
the Underwriting Agreement.
9. The Shares have been approved for listing on the New York
Stock Exchange, subject to official notice of issuance, and the Trust's
Registration Statement on Form 8-A under the 1934 Act is effective.
10. There is no action, suit or proceeding before or by any
court, commission, regulatory body, administrative agency or other governmental
agency or body, foreign or domestic, now pending or, to our knowledge,
threatened against or affecting the Trust, which is required to be disclosed in
the Prospectus that is not disclosed in the Prospectus, and there are no
contracts, franchises or other documents that are of a character required to be
described in, or that are required to be filed as exhibits to, the Registration
Statement that have not been described or filed as required.
11. The Trust does not require any tax or other rulings to
enable it to qualify as a regulated investment company under Subchapter M of the
Code.
12. Each of the sections in the Prospectus entitled
"Distributions and Taxes" and the section in the Statement of Additional
Information entitled "Taxes" is a fair summary of the principal United States
federal income tax rules currently in effect applicable to the Trust and to the
purchase, ownership and disposition of the Shares.
13. The Registration Statement (except the financial
statements and schedules and other financial data included therein as to which
we express no view), at the time it became effective, and the Prospectus (except
as aforesaid), as of the date thereof, complied as to form in all material
respects to the requirements of the Securities Act, the Investment Company Act
and the rules and regulations of the Commission thereunder.
In rendering our opinion, we have relied, as to factual
matters, upon the attached written certificates and statements of officers of
the Trust.
In connection with the registration of the Shares, we have
advised the Trust as to the requirements of the Securities Act, the Investment
Company Act and the applicable rules and regulations of the Commission
thereunder and have rendered other legal advice and assistance to the Trust in
the course of its preparation of the Registration Statement and the Prospectus.
Rendering such assistance involved, among other things, discussions and
inquiries concerning various legal and related subjects and re-
37
views of certain corporate records, documents and proceedings. We also
participated in conferences with representatives of the Trust and its
accountants at which the contents of the Registration Statement and Prospectus
and related matters were discussed. With your permission, we have not
undertaken, except as otherwise indicated herein, to determine independently,
and do not assume any responsibility for, the accuracy, completeness or fairness
of the statements in the Registration Statement or Prospectus. On the basis of
the information which was developed in the course of the performance of the
services referred to above, no information has come to our attention that would
lead us to believe that the Registration Statement, at the time it became
effective, contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of its date and as
of the date hereof, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or that any amendment or supplement to the Prospectus, as
of its respective date, and as of the date hereof, contained any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements in the Prospectus, in the light of the
circumstances under which they were made, not misleading (except the financial
statements, schedules and other financial data included therein, as to which we
express no view).
38
ANNEX B
FORM OF OPINION OF INTERNAL COUNSEL
REGARDING XXXXX XXXXX MANAGEMENT
1. Xxxxx Xxxxx has been duly formed and is validly existing as
a Massachusetts business trust under the laws of its jurisdiction of
incorporation with full power and authority to conduct all of the activities
conducted by it, to own or lease all of the assets owned or leased by it and to
conduct its business as described in the Registration Statement and Prospectus,
and Xxxxx Xxxxx is duly licensed and qualified and in good standing in each
other jurisdiction in which it is required to be so qualified and Xxxxx Xxxxx
owns, possesses or has obtained and currently maintains all governmental
licenses, permits, consents, orders, approvals and other authorizations, whether
foreign or domestic, necessary for Xxxxx Xxxxx to carry on its business as
contemplated in the Registration Statement and the Prospectus.
2. Xxxxx Xxxxx is duly registered as an investment adviser
under the Advisers Act and is not prohibited by the Advisers Act, the Investment
Company Act, the Advisers Act Rules or the Investment Company Act Rules from
acting as investment adviser for the Trust as contemplated by the Investment
Advisory Agreement, the Registration Statement and the Prospectus.
3. Xxxxx Xxxxx has full power and authority to enter into each
of the Underwriting Agreement, the Investment Advisory Agreement, the
Administration Agreement and the Shareholder Servicing Agreement (collectively,
the "Xxxxx Xxxxx Agreements") and to carry out all the terms and provisions
thereof to be carried out by it, and each such agreement has been duly and
validly authorized, executed and delivered by Xxxxx Xxxxx; each Xxxxx Xxxxx
Agreement complies in all material respects with all provisions of the
Investment Company Act, the Advisers Act, the Investment Company Act Rules and
the Advisers Act Rules; and assuming due authorization, execution and delivery
by the other parties thereto, each Xxxxx Xxxxx Agreement constitutes a legal,
valid and binding obligation of Xxxxx Xxxxx, enforceable in accordance with its
terms, (1) subject, as to enforcement, to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general equitable
principles (regardless of whether enforcement is sought in a proceeding in
equity or at law) and (2) as rights to indemnity thereunder may be limited by
federal or state securities laws.
4. Neither (A) the execution and delivery by Xxxxx Xxxxx of
any Xxxxx Xxxxx Agreement nor (B) the consummation by Xxxxx Xxxxx of the
transactions contemplated by, or the performance of its obligations under any
Xxxxx Xxxxx Agreement
39
conflicts or will conflict with, or results or will result in a breach of, the
Agreement and Declaration of Trust or By-Laws of Xxxxx Xxxxx or any agreement or
instrument to which Xxxxx Xxxxx is a party or by which Xxxxx Xxxxx is bound, or
any law, rule or regulation, or order of any court, governmental
instrumentality, securities exchange or association or arbitrator, whether
foreign or domestic, applicable to Xxxxx Xxxxx.
5. No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or association, whether
foreign or domestic, is required for the consummation of the transactions
contemplated in, or the performance by Xxxxx Xxxxx of its obligations under, any
Xxxxx Xxxxx Agreement, except such as have been obtained under the Investment
Company Act, the Advisers Act, the Securities Act, the Investment Company Act
Rules, the Advisers Act Rules and the Securities Act Rules.
6. The description of Xxxxx Xxxxx and its business, and the
statements attributable to Xxxxx Xxxxx, in the Registration Statement and the
Prospectus complies with the requirements of the Securities Act, the Investment
Company Act, the Securities Act Rules and the Investment Company Act Rules and
do not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading.
7. There is no action, suit or proceeding before or by any
court, commission, regulatory body, administrative agency or other governmental
agency or body, foreign or domestic, now pending or, to our knowledge,
threatened against or affecting Xxxxx Xxxxx of a nature required to be disclosed
in the Registration Statement or Prospectus or that might reasonably result in
any material adverse change in the condition, financial or otherwise, business
affairs or business prospects of Xxxxx Xxxxx or the ability of Xxxxx Xxxxx to
fulfill its respective obligations under any Xxxxx Xxxxx Agreement.
8. The Registration Statement (except the financial statements
and schedules and other financial data included therein as to which we express
no view), at the time it became effective, and the Prospectus (except as
aforesaid), as of the date thereof, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act,
the Investment Company Act and the rules and regulations of the Commission
thereunder.
In rendering our opinion, we have relied, as to factual
matters, upon the attached written certificates and statements of officers of
Xxxxx Xxxxx.
In connection with the registration of the Shares, we have
advised Xxxxx Xxxxx as to the requirements of the Securities Act, the Investment
Company Act and
40
the applicable rules and regulations of the Commission thereunder and have
rendered other legal advice and assistance to Xxxxx Xxxxx in the course of the
preparation of the registration Statement and the Prospectus. Rendering such
assistance involved, among other things, discussions and inquiries concerning
various legal and related subjects and reviews of certain corporate records,
documents and proceedings. We also participated in conferences with
representatives of the Trust and its accountants and Xxxxx Xxxxx at which the
contents of the registration and Prospectus and related matters were discussed.
With your permission, we have not undertaken, except as otherwise indicated
herein, to determine independently, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements in the Registration
Statement or Prospectus. On the basis of the information which was developed in
the course of the performance of the services referred to above, no information
has come to our attention that would lead us to believe that the Registration
Statement, at the time it became effective, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus, as of its date and as of the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that any amendment
or supplement to the Prospectus, as of its respective date, and as of the date
hereof, contained any untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements in the
Prospectus, in the light of the circumstances under which they were made, not
misleading (except the financial statements, schedules and other financial data
included therein, as to which we express no view).
41
ANNEX C
Form of Opinion of Xxxxxxxxxxx & Xxxxxxxx LLP
The statements contained in the Prospectus under the heading
"DISTRIBUTIONS AND TAXES - Massachusetts Taxes" and in Appendix C to the
Statement of Additional Information under the heading "MASSACHUSETTS AND U.S.
TERRITORY INFORMATION - Massachusetts," to the extent that such statements
constitute matters of law or legal conclusions, provide a fair summary of such
law or conclusions. Such statements are based on current Massachusetts tax laws
and our understanding of the Trust's proposed operations, as disclosed in the
Prospectus.
Although we do not pass upon or assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, and have not made any independent
check or verification thereof, no facts have come to our attention which would
lead us to believe that the material contained in the Prospectus under the
heading "DISTRIBUTIONS AND TAXES - Massachusetts Taxes" and in Appendix C to the
Statement of Additional Information under the heading "MASSACHUSETTS AND U.S.
TERRITORY INFORMATION - Massachusetts," at the time the Registration Statement
became effective, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of its date and as
of the date hereof, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or that any amendment or supplement to the Prospectus, as
of its respective date, and as of the date hereof, contained any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements in the Prospectus, in the light of the
circumstances under which they were made, not misleading.
In rendering the foregoing opinions, we have relied as to matters of
fact, to the extent we deem proper, on certificates of responsible officers of
the Trust and of the Investment Adviser, and of public officials.
42
ANNEX D
FORM OF ACCOUNTANT'S LETTER
January 29, 1999
The Board of Trustees of
Xxxxx Xxxxx Massachusetts Municipal Income Trust
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Managing Representative of the Underwriters
Ladies and Gentlemen:
We have audited the statement of assets and liabilities of Xxxxx Xxxxx
Massachusetts Municipal Income Trust (the "Trust") as of January ___, 1999
included in the Registration Statement on Form N-2 filed by the Trust under the
Securities Act of 1933 (the "Act") (File No. 333-68725) and under the Investment
Company Act of 1940 (the "1940 Act") (File No. 811-09147); such statement and
our report with respect to such statement are included in the Registration
Statement.
In connection with the Registration Statement:
1. We are independent public accountants with respect to the Trust
within the meaning of the Act and the applicable rules and regulations
thereunder.
2. In our opinion, the statement of assets and liabilities included in
the Registration Statement and audited by us complies as to form in all
respects with the applicable accounting requirements of the Act, the
1940 Act and the respective rules and regulations thereunder.
3. For purposes of this letter we have read the minutes of all meetings
of the Shareholders, the Board of Trustees and all Committees of the
Board of Trustees of the Trust as set forth in the minute books at the
offices of the Trust, officials of the Trust having advised us that the
minutes of all such meetings through January ___, 1999, were set forth
therein.
1
43
4. Trust officials have advised us that no financial statements as of
any date subsequent to January ___, 1999, are available. We have made
inquiries of certain officials of the Trust who have responsibility for
financial and accounting matters regarding whether there was any change
at January ___, 1999, in the capital shares or net assets of the Trust
as compared with amounts shown in the January ___, 1999, statement of
assets and liabilities included in the Registration Statement, except
for changes that the Registration Statement discloses have occurred or
may occur. On the basis of our inquiries and our reading of the minutes
as described in Paragraph 3, nothing came to our attention that caused
us to believe that there were any such changes.
The foregoing procedures do not constitute an audit made in accordance
with generally accepted auditing standards. Accordingly, we make no
representations as to the sufficiency of the foregoing procedures for your
purposes.
This letter is solely for the information of the addressees and to
assist the underwriters in conducting and documenting their investigation of the
affairs of the Trust in connection with the offering of the securities covered
by the Registration Statement, and is not to be used, circulated, quoted or
otherwise referred to within or without the underwriting group for any other
purpose, including but not limited to the registration, purchase or sale of
securities, nor is it to be filed with or referred to in whole or in part in the
Registration Statement or any other document, except that reference may be made
to it in the underwriting agreement or in any list of closing documents
pertaining to the offering of the securities covered by the Registration
Statement.
Very truly yours,
DELOITTE & TOUCHE LLP
