ADDITIONAL SERIES A MUNIFUND PREFERRED SHARES (MFP) PURCHASE AGREEMENT dated as of November 6, 2024 between NUVEEN ENHANCED HIGH YIELD MUNICIPAL BOND FUND, as Issuer and BANC OF AMERICA PREFERRED FUNDING CORPORATION as Purchaser
Exhibit 99.5
ADDITIONAL SERIES A MUNIFUND PREFERRED SHARES (MFP) PURCHASE AGREEMENT
dated as of
November 6, 2024
between
NUVEEN ENHANCED HIGH YIELD MUNICIPAL BOND FUND,
as Issuer
and
BANC OF AMERICA PREFERRED FUNDING CORPORATION
as Purchaser
(HYIF Series A MFP – VARIABLE RATE MODE)
CUSIP: 000000000
CONTENTS
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PAGE
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ARTICLE I DEFINITIONS
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1
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1.1
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Incorporation of Certain Definitions by Reference; Initial Series A VRM-MFP Shares Purchase Agreement and 2023 Additional Series A VRM-MFP Shares Purchase Agreement
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5
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ARTICLE II PURCHASE AND TRANSFERS, COSTS AND EXPENSES; ADDITIONAL FEES
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5
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2.1
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Purchase and Transfer of the MFP Shares
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5
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2.2
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Consent
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6
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2.3
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Operating Expenses; Fees
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6
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2.4
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Additional Fee for Failure to Comply with Reporting Requirement
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7 | |
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ARTICLE III CONDITIONS TO EFFECTIVE DATE
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7
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE FUND
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8
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4.1
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Existence
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8
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4.2
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Authorization; Contravention
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8
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4.3
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Binding Effect
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8
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4.4
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Financial Information
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9 | |
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4.5
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Litigation
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9
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4.6
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Consents
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9
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4.7
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Incorporation of Additional Representations and Warranties
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9
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4.8
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Complete and Correct Information
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9
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4.9
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Memorandum
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9
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4.10
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1940 Act Registration
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10
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4.11
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Effective Leverage Ratio; Asset Coverage
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10
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4.12
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Eligible Assets
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10
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4.13
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[Reserved]
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10
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4.14
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Due Diligence
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10
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4.15
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Certain Fees
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10
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4.16
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Capitalization
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10
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ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
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10
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5.1
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Existence
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10
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5.2
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Authorization; Contravention
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11
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5.3
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Binding Effect
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11
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5.4
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Own Account
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11
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5.5
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Litigation
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11
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5.6
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Consents
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11
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5.7
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The Purchaser’s Status
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11
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5.8
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Experience of the Purchaser
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11
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5.9
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Certain Transactions
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12
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5.10
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Access to Information
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12
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5.11
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Due Diligence
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12
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5.12
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Certain Fees
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12
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ARTICLE VI COVENANTS OF THE FUND
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12
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6.1
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Information
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12
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6.2
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No Amendment or Certain Other Actions Without Consent of the Purchaser
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14
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6.3
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Maintenance of Existence
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14
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6.4
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Tax Status of the Fund
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14
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6.5
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Payment Obligations
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15
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6.6
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Compliance With Law
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15
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6.7
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Maintenance of Approvals: Filings, Etc.
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15
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6.8
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Inspection Rights
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15
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6.9
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Litigation, Etc.
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15
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6.10
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1940 Act Registration
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16
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6.11
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Eligible Assets
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16
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6.12
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[Reserved]
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16
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6.13
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Other Portfolio Investment Covenants
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16
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6.14
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Tender and Paying Agent
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16
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6.15
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Cooperation in the Sale of the MFP Shares
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16
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6.16
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Use of Proceeds
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17
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6.17
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Securities Depository
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17
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6.18
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Future Agreements
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17
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ARTICLE VII MISCELLANEOUS
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17
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7.1
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Notices
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17
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7.2
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No Waivers
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18
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7.3
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Expenses and Indemnification
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19
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7.4
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Amendments and Waivers
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20
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7.5
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Successors and Assigns
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21 | |
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7.6
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Term of this Agreement
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21
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7.7
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Governing Law
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21
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7.8
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Waiver of Jury Trial
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21
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7.9
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Counterparts and Electronic Signatures
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21
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7.10
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Beneficiaries
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22
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7.11
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Entire Agreement
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22
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7.12
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Relationship to the Statement and Variable Rate Mode Supplement
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22
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7.13
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Confidentiality
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22
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7.14
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Severability
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23
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7.15
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Consent Rights of the Majority Participants to Certain Actions
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23
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7.16
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Disclaimer of Liability of Officers, Trustees and Shareholders.
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24
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7.17
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Transition Remarketing
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24
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SCHEDULE 1
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26
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EXHIBIT A FORMS OF OPINIONS OF COUNSEL FOR THE ISSUER
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27
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EXHIBIT A-1 FORM OF CORPORATE AND 1940 ACT OPINION
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28
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EXHIBIT A-2 FORM OF TAX OPINION
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29
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EXHIBIT A-3 FORM OF LOCAL COUNSEL OPINION
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30
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EXHIBIT A-4 [RESERVED]
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31
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EXHIBIT B ELIGIBLE ASSETS
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32
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EXHIBIT C TRANSFEREE CERTIFICATE
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35
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EXHIBIT D INFORMATION TO BE PROVIDED BY THE FUND
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40
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ADDITIONAL SERIES A MUNIFUND PREFERRED SHARES (MFP) PURCHASE AGREEMENT dated as of November 6, 2024, between NUVEEN ENHANCED
HIGH YIELD MUNICIPAL BOND FUND, a closed-end fund organized as a Massachusetts business trust, as issuer (the “Fund”), and BANC OF AMERICA PREFERRED FUNDING
CORPORATION, a Delaware corporation, including its successors by merger or operation of law (and not merely by assignment of all or part of this Agreement (as defined below) or transfer of the MFP Shares (as hereinafter defined)) (“Banc of America” or the “Purchaser”).
WHEREAS, the Fund has 545 Series A MuniFund Preferred Shares (the “Existing Series A MFP Shares”) issued and
outstanding pursuant to the Statement (as defined below), as modified by the Variable Rate Mode Supplement (as defined below), acquired by the Purchaser on September 27, 2022 and April 20, 2023;
WHEREAS, the Fund has authorized the issuance pursuant to the Statement, as modified by the Variable Rate Mode Supplement as supplemented by the Offered Series A MFP Supplement (as defined below), to the Purchaser of 750 additional Series A MuniFund Preferred Shares (the “Additional MFP Shares” and, together with the Existing
Series A MFP Shares, the “MFP Shares”) as set forth on Schedule 1 hereto, which are subject to this Agreement;
WHEREAS, as an inducement to the Purchaser to purchase the Additional MFP Shares from the Fund, the Fund now desires to enter into this Agreement to set forth
certain representations, warranties, covenants and agreements regarding the Fund and the Additional MFP Shares and, as applicable, the MFP Shares; and
WHEREAS, as an inducement to the Fund to issue and sell the Additional MFP Shares to the Purchaser, the Purchaser desires to enter into this Agreement to set
forth certain representations, warranties, covenants and agreements regarding the Purchaser and the Additional MFP Shares and, as applicable, the MFP Shares.
NOW, THEREFORE, in consideration of the respective agreements contained herein, the parties hereto agree as follows:
ARTICLE I
The following terms, as used herein, have the following meanings:
“2023 Offered Series A MFP Supplement” means the supplement to the Variable Rate Mode Supplement with respect to the additional MFP Shares issued in connection
with the 2023 Series A VRM-MFP Shares Purchase Agreement.
“2023 Series A VRM-MFP Shares Purchase Agreement” means the Additional Series A VRM-MFP Shares Purchase Agreement, dated April 20, 2023, between the Fund and
the Purchaser, as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof.
“Additional Amount Payment” has the meaning set forth in the Variable Rate Mode Supplement.
“Agreement” means this Additional Series A MuniFund Preferred Shares (MFP) Purchase Agreement, dated as of November 6, 2024, as the same may be amended,
restated, supplemented or otherwise modified from time to time in accordance with the terms hereof.
“Applicable Spread” has the meaning set forth in the Variable Rate Mode Supplement.
“Asset Coverage” has the meaning set forth in the Statement.
“Banc of America” has the meaning set forth in the preamble to this Agreement.
“Banks” has the meaning set forth in Section 2.1(b).
1
“Beneficial Owner” has the meaning set forth in the Statement.
“Board of Trustees” has the meaning set forth in the Statement.
“Business Day” has the meaning set forth in the Statement.
“Closed-End Funds” has the meaning set forth in Section 2.1(b).
“Code” has the meaning set forth in the Statement.
“Common Shares” has the meaning set forth in the Statement.
“Custodian” has the meaning set forth in the Statement.
“Date of Original Issue” has the meaning set forth in the Statement.
“Declaration” has the meaning set forth in the Statement.
“Derivative Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, repurchase transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or
any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other
master agreement, including any such obligations or liabilities under any such master agreement.
“Dividend Payment Date” has the meaning set forth in the Variable Rate Mode Supplement.
“Dividend Rate” has the meaning set forth in the Variable Rate Mode Supplement.
“Dividend Reset Period” has the meaning set forth in the Variable Rate Mode Supplement.
“Due Diligence Request” means the due diligence request letter from Xxxxxxx and Xxxxxx LLP dated September 13, 2022.
“Effective Date” means November 6, 2024 subject to the satisfaction or waiver of the conditions specified in Article III.
“Effective Leverage Ratio” has the meaning set forth in the Variable Rate Mode Supplement.
“Eligible Assets” means the instruments in which the Fund may invest as described in Exhibit B to this Agreement, which may be amended from time to time with
the prior written consent of the Purchaser.
“Fee Rate” means initially 0.25% per annum, which shall be subject to increase cumulatively by 0.25% per annum for each Week in respect of which any Reporting
Failure has occurred and is continuing.
“Force Majeure Exception” means, for purposes of Section 2.4, any failure or delay in the performance of the Fund’s reporting obligations under Sections 6.1(o)
or 6.1(p) arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots;
loss or malfunctions of utilities, computer (hardware or software) or communication services; accidents; acts of civil or military authority and governmental action. The Fund shall use commercially reasonable efforts to commence performance of its
obligations during any of the foregoing circumstances.
2
“Fund” has the meaning set forth in the preamble to this Agreement.
“Holder” has the meaning set forth in the Statement.
The word “including” means “including without limitation.”
“Indemnified Persons” means the Purchaser and its affiliates and directors, officers, partners, employees, agents, representatives and control persons entitled
to indemnification by the Fund under Section 7.3.
“Information” has the meaning set forth in Section 7.13.
“Initial Mode” has the meaning set forth in the Variable Rate Mode Supplement.
“Initial Series A VRM-MFP Shares Purchase Agreement” means the Initial Series A MuniFund Preferred Shares (MFP) Purchase Agreement, dated as of September 27,
2022, between the Fund and the Purchaser, as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof
“Investment Adviser” means Nuveen Fund Advisors, LLC, or any successor company or entity.
“Liquidation Preference” means, with respect to a given number of MFP Shares, $100,000 times that number.
“Liquidity Account Investments” has the meaning set forth in the Statement.
“Majority Participants” means the Holder(s) of more than 50% of the Outstanding MFP Shares.
“Managed Assets” means the total assets of the Fund, minus the sum of its accrued liabilities (other than Fund liabilities for the express purpose of creating
leverage). Total assets for this purpose shall include assets attributable to the Fund’s use of leverage (whether or not those assets are reflected in the Fund’s financial statements for purposes of generally accepted accounting principles), and
derivatives will be valued at their market value.
“Market Value” has the meaning set forth in the Statement.
“Memorandum” means the offering memorandum dated November 5, 2024, and the Pricing Supplement in respect of the Fund’s offering of Additional MFP Shares, as
the same may be amended, revised or supplemented from time to time.
“Minimum VRM Asset Coverage” means Asset Coverage of at least 270%.
“Mode” has the meaning set forth in the Statement.
“Xxxxx’x” means Xxxxx’x Investors Service, Inc., a Delaware corporation, and its successors.
“1940 Act” means the U.S. Investment Company Act of 1940, as amended.
“NRSRO” has the meaning set forth in the Statement.
3
“Nuveen Persons” means the Investment Adviser or any affiliated person of the Investment Adviser (as defined in Section 2(a)(3) of the 1940 Act) (other than
the Fund, in the case of a redemption or purchase of MFP Shares which are to be cancelled within ten (10) days of purchase by the Fund).
“Offered Series A MFP Supplement” means the supplement to the Variable Rate Mode Supplement with respect to the Additional MFP Shares.
“Optional Redemption Premium” has the meaning set forth in the Variable Rate Mode Supplement.
The word “or” is used in its inclusive sense.
“Outstanding” has the meaning set forth in the Statement.
“Person” has the meaning set forth in the Statement.
“Placement Agent” means Nuveen Securities, LLC.
“Placement Agreement” means the placement agreement, dated as of November 5, 2024, among the Fund, the Investment Adviser and Nuveen Securities, LLC with
respect to the offering and sale of the Additional MFP Shares.
“Preferred Shares” has the meaning set forth in the Statement.
“Pricing Supplement” means the pricing supplement dated November 5, 2024 accompanying the offering memorandum dated November 5, 2024 in respect of the Fund’s
offering of Additional MFP Shares, as amended, revised or supplemented from time to time.
“Purchase Price” means, in respect of the Additional MFP Shares sold to the Purchaser, U.S. $75,000,000.
“Purchaser” has the meaning set forth in the preamble to this Agreement.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A under the Securities Act.
“Rating Agency” means, at any time, each of Moody’s (if Xxxxx’x is then rating the MFP Shares) and any other NRSRO, in each case, then providing a rating for
the MFP Shares pursuant to the request of the Fund at such time.
“Rating Agency Guidelines” means the guidelines provided by any Rating Agency, as they exist from time to time, applied by such Rating Agency in connection
with the Rating Agency’s rating of the MFP Shares.
“Related Documents” means this Agreement, the Declaration, the Statement, the Variable Rate Mode Supplement, the MFP Shares and the by-laws of the Fund, as
amended from time to time.
“Replacement” has the meaning set forth in Section 7.15.
“Reporting Date” has the meaning set forth in Section 6.1(o).
“Reporting Failure” has the meaning set forth in Section 2.4.
“SEC” has the meaning set forth in Section 6.1(a).
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“Securities Depository” has the meaning set forth in the Statement.
4
“Statement” means the Statement Establishing and Fixing the Rights and Preferences of Series A MuniFund Preferred Shares, effective September 27, 2022, as it
may be amended, restated, supplemented or otherwise modified from time to time in accordance with the provisions thereof, including by any Supplement thereto applicable for the period of the Mode established by such Supplement.
“Sub-Adviser” means Nuveen Asset Management, LLC, the Fund’s sub-adviser which is a subsidiary of the Investment Adviser.
“Supplement” means the Variable Rate Mode Supplement or any further supplement to the Statement extending or designating a Mode pursuant to Section 4 of the
Statement.
“Tender and Paying Agent” means The Bank of New York Mellon or, with the prior written consent of the Purchaser (which consent shall not be unreasonably
withheld), any successor Person, which has entered into an agreement with the Fund to act in such capacity as the Fund’s tender agent, transfer agent, registrar, dividend disbursing agent, paying agent, redemption price disbursing agent and
calculation agent in connection with the payment of regularly scheduled dividends with respect to MFP Shares.
“Transition Remarketing” has the meaning set forth in the Variable Rate Mode Supplement.
“Transition Remarketing Agent” has the meaning set forth in the Variable Rate Mode Supplement.
“Variable Rate Mode” means the Initial Mode established for the MFP Shares by the terms and conditions of the Statement as modified by the Variable Rate Mode
Supplement.
“Variable Rate Mode Supplement” means the Supplement included as Appendix A to the Statement relating to the Initial Mode, as supplemented by the 2023 Offered
Series A MFP Supplement, and as further supplemented by the Offered Series A MFP Supplement, and as it may be further amended or supplemented from time to time.
“Week” means a period of seven (7) consecutive calendar days.
“written” or “in writing” means any form of written communication, including communication by means of telex,
telecopier or electronic mail.
| 1.1 |
Incorporation of Certain Definitions by Reference; Initial Series A VRM-MFP Shares Purchase Agreement and 2023 Series A VRM-MFP Shares Purchase Agreement
|
(a) Each capitalized term used herein and not otherwise defined herein shall have the meaning provided therefor (including by
incorporation by reference) in the Statement or the Variable Rate Mode Supplement.
(b) The Fund and the Purchaser acknowledge and agree that (i) each of the Initial Series A VRM-MFP Shares Purchase Agreement and 2023
Additional Series A VRM-MFP Shares Purchase Agreement remain in full force and effect, subject to termination in accordance with each agreement’s terms and (ii) compliance with any provision of Section 2.4, Article VI, Section 7.1 or Section 7.15 of
this Agreement shall be deemed to constitute compliance with the applicable provision of the Initial Series A VRM-MFP Shares Purchase Agreement and the 2023 Additional Series A VRM-MFP Shares Purchase Agreement.
ARTICLE II
| 2.1 |
Purchase and Transfer of the MFP Shares
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| (a) |
On the Effective Date the Purchaser will acquire 750 Additional MFP Shares sold on initial issuance in a transaction (which, based upon the representations of the Fund and the Purchaser herein, is exempt from registration under the
Securities Act), by payment of the Purchase Price to or upon the order of the Fund by wire transfer payable in same-day funds to an account specified by the Fund.
|
5
| 2.2 |
Consent
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The Purchaser, in its capacity as the Majority Participants under the Initial Series A VRM-MFP Shares Purchase Agreement and 2023 Additional Series A VRM-MFP Shares Purchase Agreement, hereby
consents to the issuance of the Additional MFP Shares in accordance with Section 7.15 of such agreement.
| 2.3 |
Operating Expenses; Fees
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| (a) |
The Fund shall pay amounts due to be paid by it hereunder (including any incidental expenses but not including redemption or dividend payments on the MFP Shares) as operating expenses.
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| (c) |
With respect to the fees and expenses described in subsection (b) of this Section 2.3, the Fund will pay such fees and expenses within thirty (30) days of receipt of the associated invoice.
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6
| 2.4 |
Additional Fee for Failure to Comply with Reporting Requirement
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For so long as the Purchaser is a Holder or Beneficial Owner of any Outstanding MFP Shares, if the Fund fails to comply with the reporting requirements set forth in Section 6.1(o) or 6.1(p) (except
as a result of a Force Majeure Exception) and such failure is not cured within three (3) Business Days after written notification to the Fund by the Purchaser of such failure (a “Reporting Failure”), the Fund
shall pay to the Purchaser on the Dividend Payment Date occurring in the month immediately following a month in which a Reporting Failure occurs or is continuing a fee, calculated in respect of each Week (or portion thereof) during such month in
respect of such Reporting Failure and beginning on the date of such Reporting Failure, equal to the product of (a) the Fee Rate, times (b) the aggregate average daily Liquidation Preference of the MFP Shares held by the Purchaser during such Week or
portion thereof, times (c) the quotient of the number of days in such Week or portion thereof divided by the number of calendar days in the year in which such Week or portion thereof occurs. Notwithstanding the foregoing, in no event shall (i) the
fee payable pursuant to this Section 2.4 for any Week plus the Applicable Spread on the MFP Shares for such Week exceed an amount (exclusive of any Additional Amount Payment) equal to the product of (x) 6.6% times (y) the aggregate average daily
Liquidation Preference of the MFP Shares held by the Purchaser during such Week or portion thereof, times (z) the quotient of the number of days in such Week or portion thereof divided by the number of calendar days in the year in which such Week or
portion thereof occurs, (ii) the fee payable pursuant to this Section 2.4 for any Week plus the amount of dividends payable at the Dividend Rate for the MFP Shares for such Week exceed an amount equal to the product of (aa) 15%, times (bb) the
aggregate average daily Liquidation Preference of the MFP Shares held by the Purchaser during such Week or portion thereof, times (cc) the quotient of the number of days in such Week or portion thereof divided by the number of calendar days in the
year in which such Week or portion thereof occurs, (iii) the Fund be required to calculate or pay a fee in respect of more than one Reporting Failure in any Week or (iv) any payment be made under this Section 2.4 that would cause the Fund to violate
the terms of any series of its Outstanding Preferred Shares as a result of the Fund’s failure to have paid any distribution then required to be paid on any series of its outstanding Preferred Shares, provided that the Fund shall pay all
accrued and unpaid amounts otherwise payable under this Section 2.4 when such amounts may be paid under the terms of its outstanding Preferred Shares following the cure of any such failure to pay distributions thereunder.
It shall be a condition to the purchase and sale of the Additional MFP Shares and the Effective Date that each of the following conditions shall have been satisfied or waived as of such date, and
upon such satisfaction or waiver, this Agreement shall be effective:
| (a) |
this Agreement shall have been duly executed and delivered by the parties hereto;
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| (b) |
the MFP Shares shall have a long-term issue credit rating of Aa3 from Moody’s on the Effective Date;
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| (c) |
receipt by the Purchaser of executed originals, or copies certified by a duly authorized officer of the Fund to be in full force and effect and not otherwise amended, of all Related Documents, as in effect on the Effective Date, and an
incumbency certificate with respect to the authorized signatories thereto;
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| (d) |
receipt by the Purchaser of opinions of counsel for the Fund, substantially to the effect of Exhibits A-1, A-2 and A-3;
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| (e) |
[reserved];
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| (f) |
except as disclosed in the Memorandum, there shall not be any pending or threatened material litigation (unless such pending or threatened litigation has been determined by the Purchaser to be acceptable);
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| (g) |
the fees and expenses and all other amounts payable on the Effective Date pursuant to Section 2.3(b) shall have been paid upon receipt of an invoice;
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| (h) |
the Purchaser, in its reasonable discretion, shall be satisfied that no change in law, rule or regulation (or their interpretation or administration), in each case, shall have occurred which will adversely affect the consummation of the
transaction contemplated by this Agreement;
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7
| (i) |
there shall have been delivered to the Purchaser any additional documentation and financial information, including satisfactory responses to its due diligence inquiries, as it deems relevant; and
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| (j) |
there shall have been delivered to the Purchaser such information and copies of documents, approvals (if any) and records certified, where appropriate, of trust proceedings as the Purchaser may have requested relating to the Fund’s
entering into and performing this Agreement and the other Related Documents to which it is a party, and the transactions contemplated hereby and thereby.
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The Fund and the Purchaser agree that consummation of the purchase and sale of the MFP Shares pursuant to this Agreement shall constitute acknowledgment that the foregoing conditions have been
satisfied or waived.
ARTICLE IV
The representations and warranties set out in this Article IV are given hereunder by the Fund to the Purchaser as of the Effective Date.
| 4.1 |
Existence
|
The Fund is existing and in good standing as a voluntary association with transferable shares of beneficial interest commonly known as a “Massachusetts business trust,” under the laws of the
Commonwealth of Massachusetts, with full right and power to issue the Additional MFP Shares and to execute, deliver and perform its obligations under this Agreement and each other Related Document.
| 4.2 |
Authorization; Contravention
|
The execution, delivery and performance by the Fund of this Agreement and each other Related Document are within the Fund’s powers, have been duly authorized by all necessary action, require no
action by or in respect of, or filing with, any governmental body, agency or official except such as have been taken or made and do not violate or contravene, or constitute a default under, any provision of applicable law, charter, ordinance or
regulation or of any material agreement, judgment, injunction, order or decree or other material instrument binding upon the Fund or result in the creation or imposition of any lien or encumbrance on any asset of the Fund.
| 4.3 |
Binding Effect
|
This Agreement constitutes a valid and binding agreement of the Fund, enforceable in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable or public policy principles of general applicability, it being understood that the enforceability of indemnification
provisions may be subject to limitations imposed under applicable securities laws. The Additional MFP Shares have been duly authorized and, when issued upon payment therefor by the Purchaser as contemplated by this Agreement, will be validly issued
by the Fund and fully paid and nonassessable, except that, as described in the Memorandum, shareholders of a Massachusetts business trust may under certain circumstances be held liable for its obligations, and are free of any preemptive or similar
rights.
8
| 4.4 |
Financial Information
|
The financial statements of the Fund as of its most recent fiscal year-end, and the auditors’ report with respect thereto, copies of which have heretofore been furnished to the Purchaser, fairly
present in all material respects the financial condition of the Fund, at such date and for such period, and were prepared in accordance with accounting principles generally accepted in the United States, consistently applied (except as required or
permitted and disclosed). Since the most recent fiscal year-end of the Fund, there has been no material adverse change in the condition (financial or otherwise) or operations of the Fund, except as disclosed in the Memorandum, other than changes in
the general economy or changes affecting the market for municipal securities or investment companies generally. Any financial, budget and other projections furnished to the Purchaser were prepared in good faith on the basis of the assumptions stated
therein, which assumptions were fair and reasonable in light of conditions existing at the time of delivery of such financial, budget or other projections, and represented, and as of the date of this representation, represent, the Fund’s reasonable
best estimate of the Fund’s future financial performance.
| 4.5 |
Litigation
|
Except as disclosed in the Memorandum or in a schedule delivered to the Purchaser prior to the Effective Date, no action, suit, proceeding or investigation is pending or (to the best knowledge of the
Fund) overtly threatened in writing against the Fund in any court or before any governmental authority (i) in any way contesting or that, if decided adversely, would affect the validity of any Related Document, including this Agreement; or (ii) in
which a final adverse decision would materially adversely affect provisions for or materially adversely affect the sources for payment of the Liquidation Preference of or dividends and other distributions on the MFP Shares.
| 4.6 |
Consents
|
All consents, licenses, approvals, validations and authorizations of, and registrations, validations or declarations by or with, any shareholder, court or any governmental agency, bureau or agency
required to be obtained or made in connection with the execution, delivery, performance, validity or enforceability of this Agreement and the other Related Documents (including the MFP Shares) by or against the Fund have been obtained or made and are
in full force and effect.
| 4.7 |
Incorporation of Additional Representations and Warranties
|
On subjects not expressly covered by this Agreement, the Fund hereby makes to the Purchaser those same representations and warranties on additional subjects as were made
by it in the Placement Agreement as of the date or dates indicated therein, which representations and warranties, together with the related definitions of terms therein, are hereby incorporated by reference with the same effect as if each and every
such representation and warranty and definition were set forth herein in its entirety.
| 4.8 |
Complete and Correct Information
|
All information, reports and other papers and data with respect to the Fund furnished to the Purchaser (other than financial information and financial statements, which are covered solely by Section
4.4 of this Agreement) were, at the time the same were so furnished, complete and correct in all material respects. No fact is known to the Fund that materially and adversely affects or in the future may (so far as it can reasonably foresee)
materially and adversely affect the MFP Shares, or the Fund’s ability to pay or otherwise perform when due its obligations under this Agreement, any of the MFP Shares and the other Related Documents, that has not been set forth in the Memorandum or
in the financial information and other documents referred to in Section 4.4 or this Section 4.8 or in such information, reports, papers and data or otherwise made available or disclosed in writing to the Purchaser. Taken as a whole, the documents
furnished and statements made by the Fund in connection with the negotiation, preparation or execution of this Agreement and the other Related Documents do not contain untrue statements of material facts or omit to state material facts necessary to
make the statements contained therein, in light of the circumstances under which they were made, not misleading.
| 4.9 |
Memorandum
|
The Memorandum, true copies of which have heretofore been delivered to the Purchaser, when considered together with this Agreement and any information made available pursuant to the Due Diligence
Request or disclosed in writing to the Purchaser prior to the Effective Date in connection with this Agreement, does not contain any untrue statement of a material fact and such Memorandum does not omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
9
| 4.10 |
1940 Act Registration
|
The Fund is duly registered as a closed-end management investment company under the 1940 Act and such registration is in full force and effect.
| 4.11 |
Effective Leverage Ratio; Asset Coverage
|
As of the Effective Date, the Fund is in compliance with the Effective Leverage Ratio and the Minimum VRM Asset Coverage.
In connection with calculating the Effective Leverage Ratio, the Fund’s total assets and accrued liabilities reflect the positive or negative net obligations of the Fund under each Derivative
Contract determined in accordance with the Fund’s valuation policies.
| 4.12 |
Eligible Assets
|
As of the Effective Date, the Fund owns only Eligible Assets, as described in Exhibit B to this Agreement.
| 4.13 |
[Reserved]
|
| 4.14 |
Due Diligence
|
The Fund understands that nothing in this Agreement, the Memorandum, or any other materials presented to the Fund in connection with the sale of the Additional MFP Shares constitutes legal, tax or
investment advice from the Purchaser. The Fund has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with the sale of the Additional MFP Shares.
| 4.15 |
Certain Fees
|
The Fund acknowledges that, other than the fees and expenses payable pursuant to this Agreement and any fees or amounts payable to the Placement Agent and, if applicable, the Transition Remarketing
Agent by the Fund, no brokerage or finder’s fees or commissions are or will be payable by the Fund or, to the Fund’s knowledge, by the Purchaser to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other
Person with respect to the transactions contemplated by this Agreement.
| 4.16 |
Capitalization
|
The Preferred Shares capitalization of the Fund as of the date of this Agreement after giving effect to the transactions contemplated by this Agreement is set forth in the Pricing Supplement dated
November 5, 2024.
ARTICLE V
The representations and warranties set out in this Article V are given hereunder by the Purchaser to the Fund as of the Effective Date.
| 5.1 |
Existence
|
The Purchaser is existing and in good standing as a corporation under the laws of the State of Delaware, and has full right and power to acquire the Additional MFP Shares and to execute, deliver and
perform its obligations under this Agreement and each other Related Document to which it is a party.
10
| 5.2 |
Authorization; Contravention
|
The execution, delivery and performance by the Purchaser of this Agreement and each other Related Document to which it is a party are within the Purchaser’s powers, have been duly authorized by all
necessary action, require no action by or in respect of, or filing with, any governmental body, agency or official except such as have been taken or made, and do not violate or contravene, or constitute a default under, any provision of applicable
law, charter, ordinance or regulation or of any material agreement, judgment, injunction, order, decree or other instrument, binding upon the Purchaser.
| 5.3 |
Binding Effect
|
This Agreement constitutes a valid and binding agreement of the Purchaser, enforceable in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable or public policy principles of general applicability, it being understood that the enforceability of indemnification
provisions may be subject to limitations imposed under applicable securities laws.
| 5.4 |
Own Account
|
The Purchaser understands that the MFP Shares are “restricted securities” and have not been registered under the Securities Act or any applicable state securities laws and the Purchaser is acquiring
the Additional MFP Shares as principal for its own account and not with a view to or for the purpose of distributing or reselling such securities or any part thereof in violation of the Securities Act or any applicable state securities law, has no
present intention of distributing any of such MFP Shares in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the
distribution of such MFP Shares in violation of the Securities Act or any applicable state securities law (this representation and warranty not limiting the Purchaser’s right to transfer the MFP Shares in compliance with the transfer limitations of
this Agreement in compliance with applicable federal and state securities laws).
| 5.5 |
Litigation
|
Except as disclosed in a schedule delivered to the Fund prior to the Effective Date, no action, suit, proceeding or investigation is pending or (to the best knowledge of the Purchaser) overtly
threatened in writing against the Purchaser in any court or before any governmental authority in any way contesting or that, if decided adversely, would affect the validity of this Agreement.
| 5.6 |
Consents
|
All consents, licenses, approvals, validations and authorizations of, and registrations, validations or declarations by or with, any court or any governmental bureau or agency required to be obtained
by the Purchaser in connection with the execution, delivery, performance, validity or enforceability of this Agreement by or against the Purchaser and the purchase and sale of the Additional MFP Shares have been obtained or made and are in full force
and effect.
| 5.7 |
The Purchaser’s Status
|
At the time the Purchaser was offered the Additional MFP Shares, it was, and as of the Effective Date it is: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or
(a)(8) under the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act.
| 5.8 |
Experience of the Purchaser
|
The Purchaser has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the
Additional MFP Shares, and has so evaluated the merits and risks of such investment. The Purchaser is able to bear the economic risk of an investment in the Additional MFP Shares and, at the present time, is able to afford a complete loss of such
investment.
11
| 5.9 |
Certain Transactions
|
Other than consummating the transactions contemplated by this Agreement, the Purchaser has not directly or indirectly executed, nor has any Person acting on its behalf or pursuant to any
understanding with the Purchaser executed, any other purchases of securities of the Fund which may be integrated with the transactions contemplated by this Agreement.
| 5.10 |
Access to Information
|
The Purchaser acknowledges that it has had access to and has reviewed all information, documents and records that the Purchaser has deemed necessary in order to make an informed investment decision
with respect to an investment in the Additional MFP Shares. The Purchaser has had the opportunity to ask representatives of the Fund certain questions and request certain additional information regarding the terms and conditions of such investment
and the finances, operations, business and prospects of the Fund and has had any and all such questions and requests answered to the Purchaser’s satisfaction; and the Purchaser understands the risks and other considerations relating to such
investment.
| 5.11 |
Due Diligence
|
The Purchaser acknowledges that it has sole responsibility for its own due diligence investigation and its own investment decision relating to the Additional MFP Shares. The Purchaser understands
that nothing in this Agreement, the Memorandum, or any other materials presented to the Purchaser in connection with the purchase and sale of the Additional MFP Shares constitutes legal, tax or investment advice from the Fund. The Purchaser has
consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase and sale of the Additional MFP Shares.
| 5.12 |
Certain Fees
|
The Purchaser acknowledges that, other than the fees and expenses payable pursuant to this Agreement and any fees or amounts payable to the Placement Agent and, if applicable, the Transition
Remarketing Agent by the Fund, no brokerage or finder’s fees or commissions are or will be payable by the Purchaser or, to the Purchaser’s knowledge, by the Fund to any broker, financial advisor or consultant, finder, placement agent, investment
banker, bank or other Person with respect to the transactions contemplated by this Agreement.
ARTICLE VI
The Fund agrees that, so long as there is any amount payable hereunder or the Purchaser owns any Outstanding MFP Shares:
| 6.1 |
Information
|
Without limiting the other provisions of this Agreement, the Fund will deliver, or direct the Tender and Paying Agent to deliver, to the Purchaser:
12
| (b) |
notice of any change in (including being put on Credit Watch or Watchlist), or suspension or termination of, the ratings on the MFP Shares by any Rating Agency (and any corresponding change in the Rating Agency Guidelines applicable to the
MFP Shares associated with any such change in the rating from any Rating Agency) or any change of a Rating Agency rating the MFP Shares, as promptly as practicable upon the occurrence thereof;
|
| (c) |
notice of any redemption or other repurchase of any or all of the MFP Shares as provided in the Variable Rate Mode Supplement;
|
| (d) |
notice of any proposed amendments to or waivers of any of the Related Documents at such time as the amendments or waivers are sent to other parties whose approval is required for such amendment or waiver and in any event not less than ten
(10) Business Days prior to the effectiveness of any proposed amendment or waiver and copies of all such actual amendments or waivers within five (5) Business Days of being signed or, in each case, as provided in the relevant document;
|
| (e) |
notice of any missed, reduced or deferred dividend payment on the MFP Shares that remains uncured for more than three (3) Business Days as soon as reasonably practicable, but in no event later than one (1) Business Day after expiration of
the foregoing grace period;
|
| (f) |
notice of the failure to make any deposit provided for under and in accordance with Section 2.3(e) of the Variable Rate Mode Supplement in respect of a properly noticed redemption as soon as reasonably practicable, but in no event later
than two (2) Business Days after discovery of such failure to make any such deposit;
|
| (g) |
notice of non-compliance with the Rating Agency Guidelines (if applicable) for more than five (5) Business Days as soon as reasonably practicable, but in no event later than one (1) Business Day after expiration of the foregoing grace
period;
|
| (h) |
notice one (1) Business Day in advance of the relevant Dividend Reset Period of the inclusion of any net capital gains or ordinary income for regular federal income tax purposes in any dividend on the MFP Shares;
|
| (i) |
notice of any change to any investment adviser or sub-adviser of the Fund within two (2) Business Days after a resignation or a notice of removal has been sent by or to any investment adviser or sub-adviser;
|
| (j) |
notice of any proxy solicitation as soon as reasonably practicable, but in no event later than five (5) Business Days after the mailing thereof;
|
| (k) |
notice one (1) Business Day after the occurrence thereof of (i) the failure of the Fund to pay the amount due on any “senior securities” (as defined under the 1940 Act) or other debt at the time outstanding, and any period of grace or cure
with respect thereto shall have expired; (ii) the failure of the Fund to pay, or the Fund admitting in writing its inability to pay, its debts generally as they become due; or (iii) the failure of the Fund to pay accumulated dividends on any
Preferred Shares ranking pari passu with the MFP Shares, and any period of grace or cure with respect thereto shall have expired;
|
| (l) |
notice of a material breach of any representation, warranty or covenant of the Fund contained in this Agreement, the Statement or the Variable Rate Mode Supplement, in each case, only if any officer of the Fund has actual knowledge of such
breach as soon as reasonably practicable, but in no event later than five (5) days, after knowledge of any officer of the Fund or the Investment Adviser thereof;
|
| (m) |
notice of any litigation, administrative proceeding or business development which may reasonably be expected to materially adversely affect the Fund’s business, properties or affairs or the ability of the Fund to perform its obligations as
set forth hereunder or under any of the other Related Documents to which it is a party or by which it is bound as soon as reasonably practicable, but in no event later than ten (10) days, after knowledge of any officer of the Fund or the
Investment Adviser thereof;
|
13
| (n) |
upon request of the Purchaser, copies of any material that the Fund has delivered to each Rating Agency which is then rating the MFP Shares at such times and containing such information as set forth in the respective Rating Agency
Guidelines as soon as reasonably practicable following receipt of such request;
|
| (q) |
from time to time such additional information regarding the financial position, results of operations or prospects of the Fund as the Purchaser may reasonably request including, without limitation, copies of all offering memoranda or other
offering material with respect to the sale of any securities of the Fund as soon as reasonably practicable, but in no event later than ten (10) days after a request.
|
All information, reports and other papers, documentation and data with respect to the Fund furnished to the Purchaser pursuant to this Section 6.1 shall be, at the time the same are so furnished,
complete and correct in all material respects and, when considered with all other material delivered to the Purchaser under this Agreement or made available pursuant to the Due Diligence Request, will not contain untrue statements of material facts
or omit to state material facts necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading. For purposes of Sections 6.1(o) and 6.1(p), references to any day that is not a Business
Day shall mean the next preceding Business Day.
| 6.2 |
No Amendment or Certain Other Actions Without Consent of the Purchaser
|
To the extent that, collectively, the Purchaser and its affiliates are the Holders or Beneficial Owners of 51% of the MFP Shares, without the prior written consent of the Purchaser, the Fund will not
agree to, consent to or permit any amendment, supplement, modification or repeal of the Statement or the designation of the Variable Rate Mode to which this Agreement relates or the Variable Rate Mode Supplement or any provision of either thereof,
nor waive any provision of either thereof.
| 6.3 |
Maintenance of Existence
|
The Fund shall continue to maintain its existence as a business trust under the laws of the Commonwealth of Massachusetts, with full right and power to issue the MFP Shares and to execute, deliver
and perform its obligations under this Agreement and each other Related Document.
| 6.4 |
Tax Status of the Fund
|
The Fund will qualify as a “regulated investment company” within the meaning of Section 851(a) of the Code and the dividends made with respect to the MFP Shares will qualify as “exempt interest
dividends” to the extent they are reported as such by the Fund and permitted by Section 852(b)(5)(A) of the Code.
14
| 6.5 |
Payment Obligations
|
The Fund shall promptly pay or cause to be paid all amounts payable by it hereunder and under the other Related Documents, according to the terms hereof and thereof, shall take such actions as may be
necessary to include all payments hereunder and thereunder which are subject to appropriation in its budget and make full appropriations related thereto, and shall duly perform each of its obligations under this Agreement and the other Related
Documents. All payments of any sums due hereunder shall be made in the amounts required hereunder without any reduction or setoff, notwithstanding the assertion of any right of recoupment or setoff or of any counterclaim by the Fund.
| 6.6 |
Compliance With Law
|
The Fund shall comply with all laws, ordinances, orders, rules and regulations that may be applicable to it if the failure to comply could have a material adverse effect on the Fund’s ability to pay
or otherwise perform when due its obligations under this Agreement, any of the MFP Shares, or any of the other Related Documents.
| 6.7 |
Maintenance of Approvals: Filings, Etc.
|
The Fund shall at all times maintain in effect, renew and comply with all the terms and conditions of all consents, filings, licenses, approvals and authorizations as may be necessary under any
applicable law or regulation for its execution, delivery and performance of this Agreement and the other Related Documents to which it is a party or by which it is bound.
| 6.8 |
Inspection Rights
|
The Fund shall, at any reasonable time and from time to time, upon reasonable notice, permit the Purchaser or any agents or representatives thereof, at the Fund’s expense, to examine and make copies
of the records and books of account related to the transactions contemplated by this Agreement, to visit its properties and to discuss its affairs, finances and accounts with any of its officers and independent accountants, to the extent permitted by
law, provided, however, that the Fund shall not be required to pay for more than one inspection per fiscal year. The Fund will not unreasonably withhold its authorization for its independent accountants to discuss its affairs,
finances and accounts with the Purchaser.
All information, reports and other papers, documentation and data with respect to the Fund furnished to the Purchaser pursuant to this Section 6.8 shall be, at the time the same are so furnished,
complete and correct in all material respects and, when considered with all other material delivered to the Purchaser under this Agreement or made available pursuant to the Due Diligence Request, will not contain untrue statements of material facts
or omit to state material facts necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading.
| 6.9 |
Litigation, Etc.
|
The Fund shall give prompt notice in writing to the Purchaser of any litigation, administrative proceeding or business development which is reasonably expected to materially adversely affect its
business, properties or affairs or to impair the ability of the Fund to perform its obligations as set forth hereunder or under any of the other Related Documents.
All information, reports and other papers, documentation and data with respect to the Fund furnished to the Purchaser pursuant to this Section 6.9 shall be, at the time the same are so furnished,
complete and correct in all material respects and, when considered with all other material delivered to the Purchaser under this Agreement or made available pursuant to the Due Diligence Request, will not contain untrue statements of material facts
or omit to state material facts necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading.
15
| 6.10 |
1940 Act Registration
|
The Fund shall maintain its valid registration as a registered closed-end company under the 1940 Act in full force and effect.
| 6.11 |
Eligible Assets
|
The Fund shall only make investments in the Eligible Assets listed on Exhibit B, as amended from time to time with the prior written consent of the Purchaser.
| 6.12 |
[Reserved]
|
| 6.13 |
Other Portfolio Investment Covenants
|
| (a) |
If and for so long as the Fund fails to provide the information required under Sections 6.1(o) and 6.1(p), the Purchaser may calculate, for purposes of Section 2.2 of the Variable Rate Mode Supplement, the Effective Leverage Ratio and/or
Asset Coverage using the most recently received information required to be delivered pursuant to Sections 6.1(o) and 6.1(p) and the Market Values of securities determined by the third-party pricing service that provided such Market Values to
the Fund on the most recent date that information was properly provided by the Fund pursuant to the requirements of Section 6.1(o) and 6.1(p). The Effective Leverage Ratio and/or Asset Coverage as and if so calculated by the Purchaser in
such instances shall be binding on the Fund. If required based on such calculations, the Fund shall restore, as applicable, the Minimum VRM Asset Coverage as provided in Section 2.3(c)(i) of the Variable Rate Mode Supplement and Effective
Leverage Ratio as provided in Section 2.3(c)(ii) of the Variable Rate Mode Supplement.
|
In connection with calculating the Effective Leverage Ratio, the Fund’s total assets and accrued liabilities shall reflect the positive or negative net obligations of the Fund under each Derivative
Contract determined in accordance with the Fund’s valuation policies.
| (b) |
Unless the Fund receives the prior written consent of the Purchaser, the Fund shall not acquire equity securities of an “investment company” (as defined in the 1940 Act) (the “acquired company”), if, immediately after giving effect to such
acquisition, (i) more than 5% of the total assets of the Fund would be invested in equity securities of the acquired company or (ii) more than 10% of the total assets of the Fund would be invested in equity securities of the acquired company
and other investment companies (as defined above).
|
| (c) |
Notwithstanding anything to the contrary in the Statement or the Variable Rate Mode Supplement, unless the Fund receives the prior written consent of the Purchaser, to the extent that the Fund then holds securities or investments rated at
least BB- or the equivalent rating by at least one NRSRO then rating such security or investment, or, if unrated, judged to be of comparable quality by the Sub-Adviser, the Fund shall first earmark such securities or other investments as
Liquidity Account Investments ahead of any other security or investment then owned by the Fund.
|
| 6.14 |
Tender and Paying Agent
|
The Fund shall use its commercially reasonable best efforts to engage at all times a Tender and Paying Agent to perform the duties to be performed by the Tender and Paying Agent specified herein and
in the Variable Rate Mode Supplement.
| 6.15 |
Cooperation in the Sale of the MFP Shares
|
The Fund will comply with reasonable due diligence requests from the Purchaser in connection with any proposed sale by the Purchaser of the MFP Shares in a transaction exempt from registration under
the Securities Act and otherwise permitted by this Agreement, provided that (i) the Fund need not comply with any such request more than twice in any period of twelve consecutive months, and (ii) any prospective purchaser of the MFP Shares
from the Purchaser shall execute a confidentiality agreement substantially to the effect of Section 7.13 hereof prior to receiving any due diligence materials provided pursuant to such due diligence request.
16
All information, reports and other papers, documentation and data with respect to the Fund furnished to the Purchaser pursuant to this Section 6.15 shall be, at the time the same are so furnished,
complete and correct in all material respects and, when considered with all other material delivered to the Purchaser under this Agreement or made available pursuant to the Due Diligence Request, will not contain untrue statements of material facts
or omit to state material facts necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading.
| 6.16 |
Use of Proceeds
|
The Fund shall use the net proceeds from the sale of the Additional MFP Shares for the purposes set forth in the Pricing Supplement.
| 6.17 |
Securities Depository
|
The Fund agrees to use its best efforts to maintain settlement of the MFP Shares in global book entry form through the Securities Depository or such other clearance system acceptable to the
Purchaser.
| 6.18 |
Future Agreements
|
The Fund shall promptly, at the request of the Purchaser, enter into an agreement, on terms mutually satisfactory to the Fund and the Purchaser, of the type specified in Section 12(d)(1)(E)(iii) of
the 1940 Act, so as to permit the Purchaser or any transferee satisfying the requirements set forth in Section 2.1 to rely on the provisions of Section 12(d)(1)(E)(iii) of the 1940 Act.
ARTICLE VII
| 7.1 |
Notices
|
All notices, requests and other communications to any party hereunder shall be in writing (including telecopy, electronic mail or similar writing), except in the case of notices and other
communications permitted to be given by telephone, and shall be given to such party at its address or telecopy number or email address set forth below or such other address or telecopy number or email address as such party may hereafter specify for
the purpose by notice to the other parties. Each such notice, request or other communication shall be effective when delivered at the address specified in this Section; provided that notices to the Purchaser under Section 6.1 shall not be
effective until received in writing; except as otherwise specified, notices under Section 6.1 may be given by telephone to the Purchaser at the telephone numbers listed below (or such other telephone numbers as may be designated by the Purchaser, by
written notice to the Fund, to receive such notice), immediately confirmed in writing, including by fax or electronic mail. The notice address for each party is specified below:
| (a) |
if to the Fund:
|
Nuveen Enhanced High Yield Municipal Bond Fund
000 X. Xxxxxx Xxxxx; Xxxxx 0000
Chicago, IL 60606
Attention: Xxxxx X. Xxxx, Chief Administrative Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Email: xxxxx.xxxx@xxxxxx.xxx
Attention: Xxxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (312) 917- 7953
Email: xxxxxx.xxxx@xxxxxx.xxx
17
| (b) |
if to the Purchaser:
|
Banc of America Preferred Funding Corporation
One Bryant Park
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
Attention: Xxxxxx X. Xxxxxx
Xxxx Xxxxxxx
Xxxxxxx Xxxxxx
Xxxx Xxxxxxxx
Xxxx Xxxxxxx
Xxxxxx Xxxx
Telephone: (000) 000-0000
Email: xxxxxx.xxxxxx@xxxx.xxx
xxxx.xxxxxxx@xxxx.xxx
xxxx.x.xxxxxxxx@xxxx.xxx
xxxxxxx.xxxxxx@xxxx.xxx
xxxx.xxxxxxx@xxxx.xxx
xxxxxx.xxxx@xxxx.xxx
Except as otherwise provided in Section 2.1, amounts payable hereunder to the Fund shall be paid by the Purchaser in immediately available funds by wire transfer to the Fund in accordance with instructions supplied by
the Fund.
Amounts payable hereunder to the Purchaser shall be paid by the Fund in immediately available funds by wire transfer to the Purchaser in accordance with instructions supplied by the Purchaser.
| 7.2 |
No Waivers
|
| (a) |
Except as provided in Section 1.1(b) hereof, the obligations of the Fund hereunder shall not in any way be modified or limited by reference to any other document, instrument or agreement (including, without limitation, the MFP Shares or
any other Related Document). The rights of the Purchaser hereunder are separate from and in addition to any rights that any Holder or Beneficial Owner of any MFP Share may have under the terms of such MFP Share or any other Related Document
or otherwise.
|
| (b) |
No failure or delay by the Fund or the Purchaser in exercising any right, power or privilege hereunder or under the MFP Shares shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. No failure or delay by the Fund or the Purchaser in exercising any right, power or privilege under or in respect of the MFP Shares or any other Related Document shall
affect the rights, powers or privileges of the Fund or the Purchaser hereunder or shall operate as a limitation or waiver thereof. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
|
18
| 7.3 |
Expenses and Indemnification
|
| (b) |
The Fund agrees to indemnify and hold harmless the Purchaser and each other Indemnified Person of the Purchaser from and against any losses, claims, damages, liabilities and reasonable out-of-pocket expenses incurred by them (including
reasonable fees and disbursements of outside counsel) that are related to or arise out of (A) any material misstatements or any material statements omitted to be made in the Memorandum (including any documents incorporated by reference
therein) or (B) any claim by any third party relating to the offering or sale of the Additional MFP Shares by the Fund or the holding of the Additional MFP Shares by the Purchaser (x) that the Purchaser aided and abetted a breach of a
fiduciary duty by the Fund or any director or officer of the Fund or (y) arising from any act by the Fund or any director or officer of the Fund (excluding in any such case clauses (A) or (B), claims, losses, liabilities or expenses arising
out of or resulting from the gross negligence or willful misconduct of any Indemnified Person as determined by a court of competent jurisdiction).
|
| (c) |
The indemnifying party also agrees that if any indemnification sought by an Indemnified Person pursuant to this Agreement is unavailable or insufficient, for any reason, to hold harmless the Indemnified Persons in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), then the indemnifying party, in order to provide for just and equitable contribution, shall contribute to the amount paid or payable by such Indemnified Person as a result of
such losses, claims, liabilities, damages and expenses (or actions in respect thereof) in such proportion as is appropriate to reflect (i) the relative benefits received by the Fund on the one hand and the Purchaser on the other hand from the
actual or proposed transactions giving rise to or contemplated by this Agreement or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, not only such relative benefits but also the relative fault of
the Fund on the one hand and the Purchaser on the other, in connection with the statements or omissions or alleged statements or omissions that resulted in such losses, claims, damages, liabilities or expenses (or actions in respect thereof),
as well as any other relevant equitable considerations; provided that in any event the aggregate contribution of the Purchaser and its Indemnified Persons to all losses, claims, damages, liabilities and expenses with respect to which
contributions are available hereunder will not exceed the amount of dividends actually received by the Purchaser from the Fund pursuant to the proposed transactions giving rise to this Agreement. For purposes of determining the relative
benefits to the Fund on the one hand, and the Purchaser on the other, under the proposed transactions giving rise to or contemplated by this Agreement, such benefits shall be deemed to be in the same proportion as (i) the total value received
or proposed to be received by the Fund pursuant to the transactions, whether or not consummated bears to (ii) the dividends and Optional Redemption Premium, if any, paid by the Fund to the Purchaser in connection with the proposed
transactions giving rise to or contemplated by this Agreement. The relative fault of the parties shall be determined by reference to, among other things, whether the actions taken or omitted to be taken in connection with the proposed
transactions contemplated by this Agreement (including any misstatement of a material fact or the omission to state a material fact) relates to information supplied by the Fund on the one hand, or the Purchaser on the other, the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such action, misstatement or alleged omission, and any other equitable considerations appropriate in the circumstances. No Person found liable for a
fraudulent misrepresentation shall be entitled to contribution from any Person who is not also found liable for such fraudulent misrepresentation. The indemnity, reimbursement and contribution obligations under this Agreement shall be in
addition to any rights that any Indemnified Person may have at common law or otherwise.
|
19
| (d) |
If any action, suit, proceeding or investigation is commenced, as to which an Indemnified Person proposes to demand indemnification, it shall notify the indemnifying party with reasonable promptness; provided, however, that
any failure by such Indemnified Person to notify the indemnifying party shall not relieve the indemnifying party from its obligations hereunder (except to the extent that the indemnifying party is materially prejudiced by such failure to
promptly notify). The indemnifying party shall be entitled to assume the defense of any such action, suit, proceeding or investigation, including the employment of counsel reasonably satisfactory to the Indemnified Person. The Indemnified
Person shall have the right to counsel of its own choice to represent it, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the indemnifying party has failed promptly to assume the defense
and employ counsel reasonably satisfactory to the Indemnified Person in accordance with the preceding sentence or (ii) the Indemnified Person shall have been advised by counsel that there exist actual or potential conflicting interests
between the indemnifying party and such Indemnified Person, including situations in which one or more legal defenses may be available to such Indemnified Person that are different from or additional to those available to the indemnifying
party; provided, however, that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations be
liable for fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Persons of such other party; and such counsel shall, to the extent consistent with its professional responsibilities, cooperate with the
indemnifying party and any counsel designated by the indemnifying party.
|
Each party further agrees that it will not, without the prior written consent of the other party (the consent of a party shall not be required to the extent such party is neither requesting
indemnification nor being requested to provide indemnification), settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder
(whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless such settlement, compromise or consent includes an unconditional release of the Fund (if such settlement, compromise or consent
is agreed to by the Purchaser or another Indemnified Person) or the Purchaser and each other Indemnified Person (if such settlement, compromise or consent is agreed to by the Fund) from all liability and obligations arising therefrom. The Fund
further agrees that neither the Purchaser, nor any of its affiliates, or any directors, officers, partners, employees, agents, representatives or control persons of the Purchaser or any of its affiliates, shall have any liability to the Fund arising
out of or in connection with the proposed transactions giving rise to or contemplated by this Agreement except for such liability for losses, claims, damages, liabilities or expenses to the extent they have resulted from the Purchaser’s or its
affiliates’ gross negligence or willful misconduct. No Indemnified Person shall be responsible or liable to the indemnifying party or any other person for consequential, special or punitive damages which may be alleged as a result of this Agreement.
| (e) |
Nothing in this Section 7.3 is intended to limit either party’s obligations contained in other parts of this Agreement or the MFP Shares.
|
| 7.4 |
Amendments and Waivers
|
Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by the Fund and the Purchaser; provided, that the Fund shall not
make or agree to any amendment or waiver that affects any preference, right or power of the MFP Shares or the Holders or Beneficial Owners thereof in violation of the Declaration, the Statement or the Variable Rate Mode Supplement; provided further,
that in the case of any provision of this Agreement that specifies that it may be amended or waived by agreement in writing by the Purchaser, the Fund and the Purchaser agree that an email from the Purchaser indicating such agreement shall satisfy
the requirement for a signed writing.
20
| 7.5 |
Successors and Assigns
|
The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Neither the Fund nor the Purchaser may assign or
otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party (other than by operation of law), except that (1) any transferee satisfying the requirements set forth in Section 2.1 and
which has executed and delivered to the Fund the transferee certificate attached as Exhibit shall have the rights set forth in Section 7.15 and shall, so long as such transferee has provided a means for the Fund to transmit such information
electronically to it, be entitled to receive the information delivered pursuant to Sections 6.1(o) and 6.1(p) and such transferees shall be deemed a party to this Agreement for purposes of Sections 6.1(o) and 6.1(p) and the confidentiality provisions
herein as specified in the transferee certificate and (2) the Purchaser may assign its rights or obligations to any of its affiliates or any tender option bond trust (or similar investment vehicle) in which the Purchaser retains the entire residual
interest. Any assignment that fails to meet the conditions of the preceding sentence shall be void.
| 7.6 |
Term of this Agreement
|
This Agreement shall terminate on the earlier of (a) the redemption or repurchase of all Outstanding MFP Shares by the Fund and payment in full of all amounts then due and owing to the Purchaser and
its affiliates hereunder and in respect of the MFP Shares pursuant to the terms of the Variable Rate Mode Supplement and the Statement to the extent applicable to the Variable Rate Mode to which this Agreement relates and (b) the successful
Transition Remarketing of the MFP Shares to a new Mode and payment in full of all amounts then due and owing to the Purchaser hereunder and in respect of the MFP Shares pursuant to the terms of the Variable Rate Mode Supplement and the Statement to
the extent applicable to the Variable Rate Mode to which this Agreement relates; and notwithstanding any termination of this Agreement, Section 7.3, Section 7.7, Section 7.8, Section 7.10, Section 7.11, and Section 7.13 (for a period of two (2) years
after the termination of this Agreement) shall remain in full force and effect.
| 7.7 |
Governing Law
|
This Agreement shall be construed in accordance with and governed by the domestic law of the State of New York, except Section 7.16 below, which shall be construed in accordance with and governed by
the laws of the Commonwealth of Massachusetts, in each case without regard to conflict of laws principles that would require the application of the law of another jurisdiction.
THE PARTIES HERETO HEREBY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH ANY DISPUTE RELATED TO THIS AGREEMENT OR
ANY MATTERS CONTEMPLATED HEREBY.
| 7.8 |
Waiver of Jury Trial
|
The Fund and the Purchaser hereby waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matters whatsoever arising out of or
in any way connected with this Agreement.
| 7.9 |
Counterparts and Electronic Signatures
|
This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Unless otherwise
provided in this Agreement or in any MFP Share certificate, the words “execute,” “execution,” ‘signed” and “signature” and words of similar import used in or related to any document to be signed in connection with this Agreement, MFP Share
certificate or any of the transactions contemplated hereby or thereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and the keeping of records in electronic form, each of which
shall be of the same legal effect, validity or enforceability as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as provided for in any applicable law, including the
Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other similar state laws based on the Uniform Electronic Transactions Act.
21
| 7.10 |
Beneficiaries
|
This Agreement is not intended and shall not be construed to confer upon any Person other than the parties hereto and their successors and permitted assigns any rights or remedies hereunder.
| 7.11 |
Entire Agreement
|
This Agreement shall constitute the entire agreement and understanding between the parties hereto with respect to the matters set forth herein and shall supersede any and all prior agreements and
understandings relating to the subject matter hereof.
| 7.12 |
Relationship to the Statement and Variable Rate Mode Supplement
|
The Fund and the Purchaser agree that the representations, warranties, covenants and agreements contained in this Agreement are in addition to the terms and provisions set forth in the Statement and
the Variable Rate Mode Supplement.
| 7.13 |
Confidentiality
|
Any information delivered by a party to this Agreement to any other party pursuant to this Agreement, including, without limitation, pursuant to Section 6.1 in the case of the Fund (collectively, the
“Information”), shall not be disclosed by such other party (or its employees, representatives or agents) to any person or entity (except as required by law or to such of its agents and advisors as need to know
and agree to be bound by the provisions of this paragraph) without the prior written consent of the party delivering the Information.
The obligations of confidentiality set out in the preceding paragraph do not extend to Information that is or becomes available to the public or is or becomes available to the party receiving the
Information on a non‑confidential basis or is disclosed to Holders or Beneficial Owners or potential Holders or Beneficial Owners, in each case in their capacity as such, in the offering documents of the Fund, in notices to Holders or Beneficial
Owners pursuant to one or more of the Related Documents or pursuant to the Fund’s or the Purchaser’s informational obligations under Rule 144A(d)(4) or other reporting obligation of the SEC; or is required or requested to be disclosed (i) by a
regulatory agency or in connection with an examination of either party or its representatives by regulatory authorities, (ii) pursuant to subpoena or other court process, (iii) at the express direction of any other authorized government agency, (iv)
to its independent attorneys or auditors, (v) as required by any NRSRO, (vi) as otherwise required by law or regulation, (vii) otherwise in connection with the enforcement of this Agreement, (viii) in connection with the exercise of any remedies
hereunder or in any suit, action or proceeding relating to this Agreement and the enforcement of rights hereunder, (ix) subject to an agreement containing provisions substantially similar to those of this Section 7.13, (x) to a prospective purchaser
of the MFP Shares that is (a) a transferee that would be permitted pursuant to Section 2.1(b) of this Agreement and (b) aware of the confidentiality provisions of this Section 7.13 and is subject to an agreement with the transferor containing
provisions substantially similar thereto and that states that the Fund is an express third party beneficiary thereof, or (xi) subject to an agreement containing provisions substantially similar to those of this Section 7.13 and with the prior written
consent of the other party to this Agreement, which consent shall not be unreasonably withheld, to any actual or prospective counterparty in any swap or derivative transactions. The Fund hereby advises the Purchaser that the Information provided to
it pursuant to Sections 6.1(o) and 6.1(p) hereof may constitute material, nonpublic information. For the avoidance of doubt, references in this Section 7.13 to “regulatory agency,” “regulatory authorities,” “government agency” and “law or
regulation” shall be deemed to include the Internal Revenue Service and state taxation authorities.
22
| 7.14 |
Severability
|
In case any provision of this Agreement shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or
impaired thereby so long as the intent of the Parties to this Agreement shall be preserved.
| 7.15 |
Consent Rights of the Majority Participants to Certain Actions
|
Without the affirmative vote or consent of the Majority Participants, neither the Fund nor the Board of Trustees will take or authorize the taking of any of the actions set forth under clauses (a)
through (e) of this Section 7.15:
| (b) |
The Fund issuing or suffering to exist any other “senior security” (as defined in the 1940 Act as of the date hereof or, in the event such definition shall be amended, with such changes to the definition thereof as consented to by the
Majority Participants), except (i) the Series B MuniFund Preferred Shares, the MFP Shares, including the Existing Series A MFP Shares and the Additional MFP Shares, outstanding as of the date hereof or any Preferred Shares other than Series A
MuniFund Preferred Shares to be issued in the future by the Fund as permitted by the Statement and the Variable Rate Mode Supplement, (ii) senior securities consisting of Preferred Shares or indebtedness, the proceeds from the issuance of
which will be used for the exchange, retirement, redemption or repurchase of all Outstanding MFP Shares, and the payment of costs incurred in connection therewith, provided, that the amount of Preferred Shares being issued may be rounded up
to the nearest $1,000,000 aggregate liquidation preference, and (iii) as may be otherwise approved or consented to by the Majority Participants, provided that if any such “senior security” is created or incurred by the Fund it shall
not require the approval of the Majority Participants if the Fund exchanges, redeems, retires or terminates such “senior security” or otherwise cures such non-compliance within five (5) Business Days of receiving notice of the existence
thereof.
|
| (c) |
The Fund (i) creating or incurring or suffering to be incurred or to exist any lien on any other funds, accounts or other property held under the Declaration, except as permitted by the Declaration or (ii) except for any lien for the
benefit of the Custodian of the Fund on the assets of the Fund held by such Custodian, pledging any portfolio security to secure any senior securities or other liabilities to be incurred by the Fund (including under any tender option bond
trust (or similar investment vehicle) of which the residual floating rate trust certificates will be owned by the Fund) unless the aggregate securities pledged pursuant to all such pledges or security arrangements are valued for purposes of
such security arrangements in an aggregate amount not less than 70% of their aggregate market value (determined by an independent third party pricing service) for purposes of determining the value of the collateral required to be posted or
otherwise provided under all such security arrangements; provided, that it shall not require the approval of the Majority Participants if any pledge or security interest in violation of the preceding sentence is created or incurred by the
Fund and the Fund cures such violation within five Business Days of receiving notice of the existence thereof.
|
| (d) |
Approval of any amendment, alteration or repeal of any provision of the Declaration or the Statement applicable to the Variable Rate Mode to which this Agreement relates or the Variable Rate Mode Supplement, whether by merger,
consolidation, reorganization or otherwise, that would affect any preference, right or power of the MFP Shares differently from, and adversely relative to, the rights of the holders of the Common Shares.
|
| (e) |
Approval of any action to be taken pursuant to Sections 2.3(g) and 2.11 of the Variable Rate Mode Supplement.
|
23
In addition, if the Board of Trustees shall designate a replacement (the “Replacement”) to the SIFMA Municipal Swap Index pursuant to the definition of SIFMA
Municipal Swap Index contained in the Variable Rate Mode Supplement, the Fund shall notify the Holders of the MFP Shares within five (5) Business Days of such designation, and if within thirty (30) days of such notice the Majority Participants shall
have objected in writing to the Replacement, the Board of Trustees shall designate a replacement to the Replacement as agreed to between the Fund and the Majority Participants. In such event, the Replacement initially approved by the Board of
Trustees shall be the replacement to the SIFMA Municipal Swap Index in effect for purposes of the Variable Rate Mode Supplement until a new replacement to the SIFMA Municipal Swap Index has been approved by the Fund and the Majority Participants.
| 7.16 |
Disclaimer of Liability of Officers, Trustees and Shareholders.
|
A copy of the Declaration of Trust of the Fund is on file with the Secretary of the Commonwealth of Massachusetts, and notice hereby is given that this Agreement is executed on behalf of the Fund by
an officer or Trustee of the Fund in his or her capacity as an officer or Trustee of the Fund and not individually and that the obligations of the Fund under or arising out of this Agreement are not binding upon any of the Trustees, officers or
shareholders individually but are binding only upon the assets and properties of the Fund.
| 7.17 |
Transition Remarketing
|
The Purchaser acknowledges that all of the MFP Shares will be subject to Mandatory Tender in connection with Transition Remarketing in accordance with Article 3 of the Variable Rate Mode Supplement.
[The remainder of this page has been intentionally left blank.]
24
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first
above written.
|
NUVEEN ENHANCED HIGH YIELD MUNICIPAL
BOND FUND
|
|||
|
By:
|
/s/ Xxxx Xxxxxx | ||
| Name: Xxxx X. Xxxxxx | |||
| Title: Vice President and Secretary | |||
|
BANC OF AMERICA PREFERRED FUNDING
CORPORATION
|
|||
|
By:
|
/s/ Xxxxxxx Xxxxxx | ||
| Name: Xxxxxxx Xxxxxx | |||
| Title: Managing Director | |||
Signature Page to Purchase Agreement (HYIF Series A MFP)
|
Description of Additional MFP Shares:
|
750 Nuveen Enhanced High Yield Municipal Bond Fund Series A MuniFund Preferred Shares with a Liquidation Preference of $100,000 per share.
|
|
Description of Existing Series A MFP Shares:
|
545 Nuveen Enhanced High Yield Municipal Bond Fund Series A MuniFund Preferred Shares with a Liquidation Preference of $100,000 per share.
|
|
Description of MFP Shares:
|
1,295 Nuveen Enhanced High Yield Municipal Bond Fund Series A MuniFund Preferred Shares with a Liquidation Preference of $100,000 per share.
|
|
CUSIP:
|
000000000
|
26
FORMS OF OPINIONS OF COUNSEL FOR THE ISSUER
27
FORM OF CORPORATE AND 1940 ACT OPINION
[On File]
28
FORM OF TAX OPINION
[On File]
29
FORM OF LOCAL COUNSEL OPINION
[On File]
30
[RESERVED]
[On File]
31
ELIGIBLE ASSETS
On the Effective Date and at all times thereafter:
| 1. |
All assets in the Fund consist of “Eligible Assets”, defined to consist only of the following as of the time of investment:
|
| A. |
Debt obligations
|
i. “Municipal securities,” defined as obligations (whether documented as securities or as loans) of a State, the District of Columbia, a U.S. territory, or a political
subdivision thereof and including general obligations, limited obligation bonds, revenue bonds, and obligations that satisfy the requirements of section 142(b)(1) of the Internal Revenue Code of 1986 issued by or on behalf of any State, the District
of Columbia, any U.S. territory or any political subdivision thereof, including any municipal corporate instrumentality of 1 or more States, or any public agency or authority of any State, the District of Columbia, any U.S. territory or any political
subdivision thereof, including obligations of any of the foregoing types related to financing a 501(c)(3) organization. The purchase of any municipal security will be based upon the Investment Adviser’s assessment of an asset’s relative value in
terms of current yield, price, credit quality, and future prospects; and the Investment Adviser will monitor the creditworthiness of the Fund’s portfolio investments and analyze economic, political and demographic trends affecting the markets for
such assets. Eligible Assets shall include any municipal securities that at the time of purchase are paying scheduled principal and interest or if at the time of purchase are in payment default, then in the sole judgment of the Investment Adviser
are expected to produce payments of principal and interest whose present value exceeds the purchase price.
ii. Debt obligations of the United States.
iii. Debt obligations issued, insured, or guaranteed by a department or an agency of the U.S. Government, if the obligation, insurance, or guarantee commits the full
faith and credit of the United States for the repayment of the obligation.
iv. Debt obligations of the Washington Metropolitan Area Transit Authority guaranteed by the Secretary of Transportation under Section 9 of the National Capital
Transportation Act of 1969.
v. Debt obligations of the Federal Home Loan Banks.
vi. Debt obligations, participations or other instruments of or issued by the Federal National Mortgage Association or the Government National Mortgage Association.
vii. Debt obligations which are or ever have been sold by the Federal Home Loan Mortgage Corporation pursuant to sections 305 or 306 of the Federal Home Loan Mortgage
Corporation Act.
viii. Debt obligations of any agency named in 12 U.S.C. § 24(Seventh) as eligible to issue obligations that a national bank may underwrite, deal in, purchase and sell for
the bank’s own account, including qualified Canadian government obligations.
ix. Debt obligations of issuers other than those specified in (i) through (viii) above that are “investment grade” and that are “marketable.” For these purposes, an
obligation is:
32
(a) “marketable” if:
| • |
it is registered under the Securities Act;
|
| • |
it is offered and sold pursuant to Securities and Exchange Commission Rule 144A; 17 CFR 230.144A; or
|
| • |
it can be sold with reasonable promptness at a price that corresponds reasonably to its fair value; and
|
(b) “investment grade” if:
| • |
the obligor had adequate capacity to meet financial commitments under the security for the projected life of the asset or exposure, which capacity is presumed if the risk of default by the obligor is low and the full and timely repayment
of principal and interest is expected.
|
x. Certificates or other securities evidencing ownership interests in a municipal bond trust structure (generally referred to as a tender option bond structure) that
invests in (a) debt obligations of the types described in (i) above or (b) depository receipts reflecting ownership interests in accounts holding debt obligations of the types described in (i) above.
The bonds, notes and other debt securities referenced in A above shall be defined as Eligible Assets. An asset shall not lose its status as an Eligible Asset solely by virtue of the fact that:
| • |
it provides for repayment of principal and interest in any form including fixed and floating rate, zero interest, capital appreciation, discount, leases, and payment in kind; or
|
| • |
it is for long-term or short-term financing purposes.
|
| B. |
Derivatives
|
| i. |
Interest rate derivatives;
|
| ii. |
Swaps, futures, forwards, structured notes, options and swaptions related to Eligible Assets or on an index related to Eligible Assets;
|
| iii. |
Total return swaps on otherwise Eligible Assets; or
|
| iv. |
Credit default swaps.
|
| C. |
Other Assets
|
| i. |
Shares of other investment companies (open- or closed-end funds and ETFs) the assets of which consist entirely of Eligible Assets based on the Investment Adviser’s assessment of the assets of each such investment company taking into
account the investment company’s most recent publicly available schedule of investments and publicly disclosed investment policies.
|
| ii. |
Cash and cash equivalents.
|
| iii. |
Repurchase agreements on assets described in A above.
|
| iv. |
Assets not otherwise covered in A, B or C above that the Investment Adviser or the Sub-Adviser may determine are in the best interest of shareholders of the Fund to acquire in pursuing a workout arrangement with issuers (of the types
described in A above) of defaulted obligations, including, but not limited to, loans to the defaulted issuer or another party pursuant to the workout arrangement, or a debt, equity or other interest in the defaulted issuer or other party.
The Fund agrees that it will only acquire equity securities pursuant to the foregoing provision that it reasonably expects at the time of purchase and sale to hold for a period not to exceed five years from the date of purchase and sale.
|
33
| D. |
Other assets, upon written agreement of the Purchaser that such assets are eligible for purchase by the Purchaser.
|
| 2. |
The Investment Adviser has instituted policies and procedures that it believes are sufficient to ensure that the Fund and it comply with the representations, warranties and covenants contained in this Exhibit to the Agreement.
|
| 3. |
The Fund will, upon request, provide the Purchaser and its internal and external auditors and inspectors as the Purchaser may from time to time designate, with all reasonable assistance and access to information and records of the Fund
relevant to the Fund’s compliance with and performance of the representations, warranties and covenants contained in this Exhibit to the Agreement, but only for the purposes of internal and external audit.
|
34
TRANSFEREE CERTIFICATE
Nuveen Enhanced High Yield Municipal Bond Fund
000 X. Xxxxxx Xxxxx; Xxxxx 0000
Chicago, IL 60606
Attention: Xxxx Xxxxxx,
Legal Department
Ladies and Gentlemen:
Reference is hereby made to the Initial Series A MuniFund Preferred Shares (MFP) Purchase Agreement (the “Initial Purchase Agreement”), dated as of September 27, 2022, between Nuveen Enhanced High
Yield Municipal Bond Fund, a closed-end fund organized as a Massachusetts business trust (the “Fund”), and Banc Of America Preferred Funding Corporation, a Delaware corporation, including its successors by merger or operation of law (and not merely
by assignment of all or part of the Purchase Agreement or transfer of the MFP Shares) (“Banc of America” or the “Transferor”), and the Additional Series A MuniFund Preferred Shares (MFP) Purchase Agreement (the “2023 Additional Purchase Agreement”),
dated as of April 20, 2023, between the Fund and the Transferor, and the Additional Series A MuniFund Preferred Shares (MFP) Purchase Agreement (the “Additional Purchase Agreement”), dated as of November [6], 2024, between the Fund and the Purchaser
(together with the Initial Purchase Agreement and the 2023 Additional Purchase Agreement, the “Purchase Agreement”). Capitalized terms used but not defined herein shall have the meanings given them in the
Purchase Agreement.
In connection with the proposed sale by the Transferor of __________________ MFP Shares (the “Transferred Shares”) to the undersigned transferee (the “Transferee”), the undersigned agrees and
acknowledges, on its own behalf, and makes the representations and warranties, on its own behalf, as set forth in this certificate (this “Transferee Certificate”) to the Fund and the Transferor:
☐ is a “qualified institutional buyer” (a “QIB”) (as defined in Rule 144A under the
Securities Act or any successor provision) (“Rule 144A”) that is a registered closed-end management investment company the common shares of which are traded on a national securities exchange (a “Closed End Fund”), a bank or an entity that is a 100%
direct or indirect subsidiary of a bank’s publicly traded holding company (a “Bank”), insurance company or registered open-end management investment company, in each case, to which any offer and sale is being made pursuant to Rule 144A or another
available exemption from registration under the U.S. Securities Act of 1933, as amended (the “Securities Act”), in a manner not involving any public offering within the meaning of Section 4(a)(2) of the Securities Act;
☐ it is a tender option bond trust (or similar investment vehicle) in which all investors are QIBs that are Closed-End Funds, Banks,
insurance companies, or registered open-end management investment companies; or
☐ it is a person which the Fund has consented in writing to permit to be the holder of the Transferred Shares.
☐ is a Nuveen Person that after such sale and transfer, would not own more than 20% of the Outstanding MFP Shares; or
☐ is a Nuveen Person that has received the prior written consent of the Fund and the Majority Participants.
35
3. The Transferee understands and acknowledges that the Transferred Shares are “restricted securities” and have not been registered under the Securities Act or any other applicable
securities law, are being offered for sale pursuant to Rule 144A of the Securities Act or another available exemption from registration under the Securities Act, in a manner not involving any public offering with the meaning of Section 4(a)(2) of the
Securities Act, and may not be offered, sold or otherwise transferred except in compliance with the registration requirements of the Securities Act or any other applicable securities law, pursuant to an exemption therefrom or in a transaction not
subject thereto and in each case in compliance with the conditions for transfer set forth in this Transferee Certificate.
4. The Transferee is purchasing the Transferred Shares for its own account for investment, and not with a view to, or for offer or
sale in connection with, any distribution thereof in violation of the Securities Act, subject to any requirements of law that the disposition of its property be at all times within its or their control and subject to its or their ability to resell
such securities pursuant to Rule 144A or any exemption from registration available under the Securities Act.
5. The Transferee agrees on its own behalf and on behalf of each subsequent holder or owner of the Transferred Shares by its
acceptance thereof will agree to offer, sell or otherwise transfer the Transferred Shares only to Persons that are both: (A)(i) Persons that it reasonably believes are QIBs that are registered closed-end management investment companies, the common
shares of which are traded on a national securities exchange, Banks, insurance companies or registered open-end management investment companies, in each case, pursuant to Rule 144A or another available exemption from registration under the Securities
Act, in a manner not involving any public offering within the meaning of Section 4(a)(2) of the Securities Act, (ii) tender option bond trusts (or similar investment vehicles) in which all investors are Persons
such Transferee reasonably believes are QIBS that are registered closed-end management investment companies, the common shares of which are traded on a national securities exchange, banks (or affiliates of banks), insurance companies, or registered
open-end management investment companies, or (iii) other investors which the Fund has consented in writing to permit to be a holder of the Transferred Shares and (B) Persons that are either (i) not a Nuveen Person, or (ii) a Nuveen Person, provided
that (x) such Nuveen Person would, after such sale and transfer, own not more than 20% of the Outstanding MFP Shares, or (y) the prior written consent of the Fund and the holder(s) of more than 50% of the Outstanding MFP Shares has been obtained.
6. The Transferee acknowledges that the MFP Shares were issued in book-entry form and are represented by one global certificate and
that the global certificate representing the MFP Shares (unless sold to the public in an underwritten offering of the MFP Shares pursuant to a registration statement filed under the Securities Act) contains a legend substantially to the following
effect:
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY ONLY TO PERSONS THAT ARE BOTH (1)(A) A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” THAT IS A REGISTERED CLOSED-END MANAGEMENT INVESTMENT COMPANY, THE COMMON SHARES OF WHICH ARE TRADED ON A NATIONAL SECURITIES EXCHANGE, BANK ENTITIES THAT ARE 100% DIRECT OR INDIRECT SUBSIDIARIES OF BANKS’ PUBLICLY
TRADED PARENT HOLDING COMPANIES (COLLECTIVELY, “BANKS”), AN INSURANCE COMPANY OR A REGISTERED OPEN-END MANAGEMENT INVESTMENT COMPANY, IN EACH CASE, IN AN OFFER AND SALE MADE PURSUANT TO RULE 144A OR ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT, IN A MANNER NOT INVOLVING ANY PUBLIC OFFERING WITHIN THE MEANING OF SECTION 4(a)(2) OF THE SECURITIES ACT; (B) A TENDER OPTION BOND TRUST (OR SIMILAR INVESTMENT VEHICLE) IN WHICH ALL INVESTORS ARE PERSONS THE HOLDER
REASONABLY BELIEVES ARE QUALIFIED INSTITUTIONAL BUYERS THAT ARE REGISTERED CLOSED-END MANAGEMENT INVESTMENT COMPANIES, THE COMMON SHARES OF WHICH ARE TRADED ON A NATIONAL SECURITIES EXCHANGE, BANKS, INSURANCE COMPANIES, OR REGISTERED OPEN-END
MANAGEMENT INVESTMENT COMPANIES; OR (C) A PERSON THAT THE ISSUER OF THE SECURITY HAS APPROVED IN WRITING TO BE THE HOLDER OF THE SECURITY AND (2) PERSONS THAT ARE EITHER (A) NOT A NUVEEN PERSON (AS DEFINED IN THE ADDITIONAL SERIES A MUNIFUND
PREFERRED SHARES (MFP) PURCHASE AGREEMENT, DATED AS OF APRIL 20, 2023), OR (B) A NUVEEN PERSON, PROVIDED THAT (X) SUCH NUVEEN PERSON WOULD, AFTER SUCH SALE AND TRANSFER, OWN NOT MORE THAN 20% OF THE OUTSTANDING SERIES A VRM-MFP SHARES, OR (Y) THE
PRIOR WRITTEN CONSENT OF THE FUND AND THE HOLDER(S) OF MORE THAN 50% OF THE OUTSTANDING SERIES A VRM-MFP SHARES HAS BEEN OBTAINED.
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THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE AGREED THAT, IN CONNECTION WITH ANY TRANSFER OF MFP SHARES, IT IS TRANSFERRING TO THE TRANSFEREE THE RIGHT TO RECEIVE FROM THE FUND ANY
DIVIDENDS DECLARED AND UNPAID FOR EACH DAY PRIOR TO THE TRANSFEREE BECOMING THE BENEFICIAL OWNER OF THE MFP SHARES IN EXCHANGE FOR PAYMENT OF THE PURCHASE PRICE FOR SUCH MFP SHARES BY THE TRANSFEREE.
7. The Transferee has such knowledge, sophistication and experience in business and financial matters so as to be capable of
evaluating the merits and risks of the prospective investment in the Transferred Shares, and has so evaluated the merits and risks of such investment. The Transferee is able to bear the economic risk of an investment in the Transferred Shares and,
at the present time, is able to afford a complete loss of such investment.
8. The Transferee is not purchasing the Transferred Shares as a result of any advertisement, article, notice or other communication
regarding the Transferred Shares published in, nor was it offered the Transferred Shares by, any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or, to its knowledge, any other general
solicitation or general advertisement.
9 The Transferee acknowledges that it has received a copy of the Purchase Agreement and Appendices thereto and agrees to abide by
any obligations therein binding on a transferee of the MFP Shares and the confidentiality obligations therein with respect to information relating to the Fund as if it were the Transferor. The Transferee further acknowledges that the MFP Shares will
be subject to Mandatory Tender in connection with Transition Remarketing in accordance with Article 3 of the Variable Rate Mode Supplement, and agrees to cooperate to make any and all MFP Shares then owned by it available on a timely basis for
Transition Remarketing.
10. If at any time the Fund is not furnishing information to the Securities and Exchange Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934, as amended, the Transferee acknowledges that it has been given the opportunity to obtain from the Fund the information referred to in Rule 144A(d)(4) under the Securities Act, and has either declined such
opportunity or has received such information and has had access to and has reviewed all information, documents and records that it has deemed necessary in order to make an informed investment decision with respect to an investment in the Transferred
Shares and that the Transferee understands the risk and other considerations relating to such investment.
11. The Transferee acknowledges that it has sole responsibility for its own due diligence investigation and its own investment
decision relating to the Transferred Shares. The Transferee understands that any materials presented to the Transferee in connection with the purchase and sale of the Transferred Shares does not constitute legal, tax or investment advice from the
Fund. The Transferee has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with the purchase of the Transferred Shares.
12. The Transferee acknowledges that each of Transferor and the Fund and their respective affiliates and others will rely on the
acknowledgments, representations and warranties contained in this Transferee’s Certificate as a basis for exemption of the sale of the Transferred Shares under the Securities Act, under the securities laws of all applicable states, and for other
purposes. The Transferee agrees to promptly notify the Fund and the Transferor if any of the acknowledgments, representations or warranties set forth herein are no longer accurate.
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13. This Transferee Certificate shall be governed by and construed in accordance with the laws of the State of New York.
14. The Transferee agrees to provide, together with this completed and signed Transferee Certificate, a completed and signed IRS
Form W-9, Form W-8 or successor or equivalent form, as applicable.
[Signature Page Follows.]
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The undersigned has provided a completed and signed IRS Form W-9, Form W-8 or successor form, as applicable, and has caused this Transferee’s Certificate to be executed by its duly authorized representative as of the
date set forth below.
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Shares are to be registered):
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Authorized Signature | ||
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Address of Transferee for Registration of Transferred Shares: | ||
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Transferee’s taxpayer identification number: | ||
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INFORMATION TO BE PROVIDED BY THE FUND
Reporting as of: ________
TOB Floaters: $________
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CUSIP
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Portfolio
Name
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Description
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Market
Value
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Par Value
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Rating
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State
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[●]
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