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Exhibit 99(h)
BlackRock Municipal 2020 Term Trust
[ ] Shares
Common Shares
($.001 Par Value)
FORM OF UNDERWRITING AGREEMENT
September [ ], 2003
FORM OF UNDERWRITING AGREEMENT
September [ ], 2003
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center
New York, New York 10080
As Managing Underwriters
Ladies and Gentlemen:
BlackRock Municipal 2020 Term Trust, a Delaware statutory trust (the
"Trust"), proposes to issue and sell to UBS Securities LLC ("UBS"), Xxxxxxx
Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of the
underwriters named in Schedule A annexed hereto (collectively, the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom UBS and Xxxxxxx Xxxxx are
acting as representatives (in such capacity, the "Representatives"), an
aggregate of [ ] common shares (the "Firm Shares") of beneficial interest $0.001
par value (the "Common Shares"), of the Trust. In addition, solely for the
purpose of covering over-allotments, the Trust proposes to grant to the
Underwriters the option to purchase from the Trust up to an additional [ ]
Common Shares (the "Additional Shares"). The Firm Shares and the Additional
Shares are hereinafter collectively sometimes referred to as the "Shares." The
Shares are described in the Prospectus which is referred to below.
The Trust has filed with the Securities and Exchange Commission (the
"Commission"), in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations thereunder (collectively called the
"Act"), and with the provisions of the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder (collectively called the
"Investment Company Act"), a registration statement on Form N-2 (File Nos.
333-98427 and 811-21181), including a prospectus and a statement of additional
information, relating to the Shares. The Trust has furnished to you, for use by
the Underwriters and by dealers, copies of one or more preliminary prospectuses
(including a preliminary statement of additional information) (each thereof,
including such preliminary statement of additional information, being herein
called a "Preliminary Prospectus") relating to the Shares. Except where the
context otherwise requires, the registration statement, as amended when it
becomes effective (the "Effective Date"), including all documents filed as a
part thereof, and including any information contained in a prospectus
subsequently filed with the Commission pursuant to Rule 497 under the Act and
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Act is herein called the "Registration
Statement," and the prospectus (including the statement of additional
information), in the form filed by the Trust with the Commission pursuant to
Rule 497 under the Act or, if no such filing is required, the form of final
prospectus (including the form of final statement of additional information)
included in the Registration Statement at the time it became effective, is
herein called the "Prospectus". Any registration statement filed pursuant to
Rule 462(b) of the Act is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. In addition, the Trust has filed
a Notification of Registration on Form N-8A (the "Notification") pursuant to
Section 8 of the Investment Company Act.
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BlackRock Advisors, Inc. ("BAI") acts as the Trust's investment advisor
pursuant to an Investment Management Agreement by and between the Trust and BAI,
dated as of September 11, 2003 (the "Management Agreement"). BlackRock Financial
Management, Inc. ("BFM") acts as the Trust's investment sub-advisor pursuant to
a Sub-Investment Advisory Agreement by and between BFM and XXX, as accepted and
agreed to by the Trust, dated as of September 11, 2003 (the "Sub-Advisory
Agreement"). BAI and BFM are each an "Advisor", and together, the "Advisors".
State Street Bank and Trust Company acts as the custodian (the "Custodian") of
the Trust's cash and portfolio assets pursuant to a Custodian Agreement, dated
as of , 2003 (the "Custodian Agreement"). EquiServe Trust Company acts as the
Trust's transfer agent, registrar and dividend disbursing agent with respect to
the common shares of the Trust (the "Transfer Agent") pursuant to a Transfer
Agent and Service Agreement, dated as of September 11, 2003 (the "Transfer
Agency Agreement").
The Trust, the Advisors and the Underwriters agree as follows:
1. SALE AND PURCHASE. Upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth, the
Trust agrees to sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the Trust the
aggregate number of Firm Shares set forth opposite the name of such Underwriter
in Schedule A attached hereto, plus any additional number of Shares which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 8 hereof, in each case at a purchase price of $[ ] per Share. The Trust
is advised by you that the Underwriters intend (i) to make a public offering of
their respective portions of the Firm Shares as soon after the effective date of
the Registration Statement as in your judgment is advisable and (ii) initially
to offer the Firm Shares upon the terms set forth in the Prospectus. You may
from time to time increase or decrease the public offering price after the
initial public offering to such extent as you may determine.
In addition, the Trust hereby grants to the several
Underwriters the option to purchase, and upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth, the
Underwriters shall have the right to purchase, severally and not jointly, from
the Trust, ratably in accordance with the number of Firm Shares to be purchased
by each of them, all or a portion of the Additional Shares as may be necessary
to cover over-allotments made in connection with the offering of the Firm
Shares, at the same purchase price per share to be paid by the Underwriters to
the Trust for the Firm Shares. This option may be exercised by UBS and Xxxxxxx
Xxxxx on behalf of the several Underwriters at any time, and from time to time,
on or before the forty-fifth day following the date hereof, by written notice to
the Trust. Such notice shall set forth the aggregate number of Additional Shares
as to which the option is being exercised, and the date and time when the
Additional Shares are to be delivered (such date and time being herein referred
to as the Additional Time of Purchase); PROVIDED, HOWEVER, that the Additional
Time of Purchase shall not be earlier than the Time of Purchase (as defined
below) nor earlier than the second business day(1) after the date on which the
option shall have been exercised nor later than the tenth business day after the
date on which the option shall have been exercised. The number of Additional
Shares to be sold to each Underwriter shall be the number which bears the same
proportion to the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such Underwriter on
Schedule A hereto bears to the total number of Firm Shares (subject, in each
case, to such adjustment as you may determine to eliminate fractional shares).
2. PAYMENT AND DELIVERY. Payment of the purchase price for the
Firm Shares shall be made to the Trust by Federal Funds wire transfer, against
delivery of the certificates for the Firm Shares to you through the facilities
of the Depository Trust Company ("DTC") for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on September [ ], 2003 (unless another time shall be agreed to by you
and the Trust or unless postponed in accordance with the provisions of Section 8
hereof). The time at which such payment and delivery are actually made is
hereinafter sometimes called the "Time of Purchase." Each of the Time of
Purchase and the "Additional Time of Purchases" are referred to as the "Closing
Date." Certificates for the Firm Shares shall be delivered to you in definitive
form
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(1) As used herein "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
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in such names and in such denominations as you shall specify on the second
business day preceding the Time of Purchase. For the purpose of expediting the
checking of the certificates for the Firm Shares by you, the Trust agrees to
make such certificates available to you for such purpose at least one full
business day preceding the Time of Purchase.
Payment of the purchase price for the Additional Shares shall
be made at the Additional Time of Purchase in the same manner and at the same
office as the payment for the Firm Shares. Certificates for the Additional
Shares shall be delivered to you in definitive form in such names and in such
denominations as you shall specify no later than the second business day
preceding the Additional Time of Purchase. For the purpose of expediting the
checking of the certificates for the Additional Shares by you, the Trust agrees
to make such certificates available to you for such purpose at least one full
business day preceding the Additional Time of Purchase.
3. REPRESENTATIONS AND WARRANTIES OF THE TRUST AND THE ADVISORS.
(a) The Trust and the Advisors jointly and severally represent
and warrant to each of the Underwriters as of the date hereof and as
of the Closing Date and each Additional Time of Purchase, if any,
referred to in Section 2 hereof, and agree with each Underwriter, as
follows:
(i) Each of the Registration Statement and any Rule
462(b) Registration Statement has become effective under the
Act and no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration
Statement has been issued under the Act, or order of
suspension or revocation of registration pursuant to Section
8(e) of the Investment Company Act, and no proceedings for any
such purpose have been instituted or are pending or, to the
knowledge of the Trust or the Advisors, are contemplated by
the Commission, and any request on the part of the Commission
for additional information has been complied with.
At the respective times the Registration Statement,
any Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective and at any Closing Date,
the Registration Statement, the Rule 462(b) Registration
Statement, the Notification and any amendments and supplements
thereto complied and will comply in all material respects with
the requirements of the Act and the Investment Company Act and
did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued and at any Closing Date,
included or will include an untrue statement of a material
fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. If Rule 434 of the Act is used, the Trust will
comply with the requirements of Rule 434 and the Prospectus
shall not be "materially different," as such term is used in
Rule 434, from the prospectus included in the Registration
Statement at the time it became effective.
Each preliminary prospectus and the prospectus filed
as part of the Registration Statement as originally filed or
as part of any amendment thereto, or filed pursuant to Rule
497 under the Act, complied when so filed in all material
respects with the Rules and Regulations and each preliminary
prospectus and the Prospectus delivered to the Underwriters
for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the
Commission pursuant to its Electronic Data Gathering Analysis
and Retrieval System ("XXXXX"), except to the extent permitted
by Regulation S-T.
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If a Rule 462(b) Registration Statement is required
in connection with the offering and sale of the Shares, the
Trust has complied or will comply with the requirements of
Rule 111 under the Act relating to the payment of filing fees
thereof.
(ii) The accountants who certified the statement of
assets and liabilities included in the Registration Statement
are independent public accountants as required by the Act.
(iii) The statement of assets and liabilities
included in the Registration Statement and the Prospectus,
together with the related notes, presents fairly the financial
position of the Trust at the date indicated; said statement
has been prepared in conformity with generally accepted
accounting principles ("GAAP").
(iv) To the extent estimated or projected, such
estimates or projections set forth in the Prospectus in the
Fee Table have been prepared in accordance with the
requirements of Form N-2 and are reasonably believed to be
attainable in all material respects and are reasonably based.
(v) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs of the Trust,
whether or not arising in the ordinary course of business (a
"Material Adverse Effect"), (B) there have been no
transactions entered into by the Trust, other than those in
the ordinary course of business, which are material with
respect to the Trust, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Trust
on any class of its capital stock.
(vi) The Trust has been duly organized and is validly
existing as a statutory trust in good standing under the laws
of the State of Delaware and has statutory trust power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement;
and the Trust is duly qualified as a foreign statutory trust
to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse
Effect.
(vii) The Trust has no subsidiaries.
(viii) The Trust is duly registered with the
Commission under the Investment Company Act as a closed-end
diversified management investment company, and no order of
suspension or revocation of such registration has been issued
or proceedings therefor initiated or threatened by the
Commission.
(ix) No person is serving or acting as an officer,
trustee or investment advisor of the Trust except in
accordance with the provisions of the Investment Company Act
and the Investment Advisers Act of 1940, as amended, and the
rules and regulations thereunder, (collectively called the
"Advisers Act"). Except as disclosed in the Registration
Statement and the Prospectus (or any amendment or supplement
to either of them), no trustee of the Trust is an "interested
person" (as defined in the Investment Company Act) of the
Trust or an "affiliated person" (as defined in the Investment
Company Act) of any Underwriter.
(x) The authorized, issued and outstanding common
shares of beneficial interest of the Trust is as set forth in
the Prospectus as of the date thereof under the caption
"Description of Shares." All issued and outstanding common
shares of beneficial interest of the Trust have been duly
authorized and validly issued and are fully paid and
non-assessable,
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except as provided for in the Trust's declaration of trust,
and have been offered and sold or exchanged by the Trust in
compliance with all applicable laws (including, without
limitation, federal and state securities laws); none of the
outstanding common shares of beneficial interest of the Trust
was issued in violation of the preemptive or other similar
rights of any securityholder of the Trust.
(xi) The Shares to be purchased by the
Underwriters from the Trust have been duly authorized for
issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered by the Trust pursuant
to this Agreement against payment of the consideration set
forth herein, will be validly issued and fully paid and
non-assessable, except as provided for in the Trust's
declaration of trust. The Shares conform in all material
respects to all statements relating thereto contained in the
Prospectus and such description conforms in all material
respects to the rights set forth in the instruments defining
the same; no holder of the Shares will be subject to personal
liability by reason of being such a holder; and the issuance
of the Shares is not subject to the preemptive or other
similar rights of any securityholder of the Trust.
(xii) The Trust is not in violation of its
declaration of trust or by-laws, or in default in the
performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which it is a party or by
which it may be bound, or to which any of the property or
assets of the Trust is subject (collectively, "Agreements and
Instruments") except for such violations or defaults that
would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement, the
Management Agreement, the Sub-Advisory Agreement, the
Custodian Agreement and the Transfer Agency Agreement and the
consummation of the transactions contemplated herein and in
the Registration Statement (including the issuance and sale of
the Shares and the use of the proceeds from the sale of the
Shares as described in the Prospectus under the caption "Use
of Proceeds") and compliance by the Trust with its obligations
hereunder have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets
of the Trust pursuant to, the Agreements and Instruments
(except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material
Adverse Effect), nor will such action result in any violation
of the provisions of the declaration of trust or by-laws of
the Trust or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having
jurisdiction over the Trust or any of its assets, properties
or operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of
such indebtedness by the Trust.
(xiii) There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Trust or the Advisors, threatened,
against or affecting the Trust, which is required to be
disclosed in the Registration Statement (other than as
disclosed therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably
be expected to materially and adversely affect the properties
or assets of the Trust or the consummation of the transactions
contemplated in this Agreement or the performance by the Trust
of its obligations hereunder. The aggregate of all pending
legal or governmental proceedings to which the Trust is a
party or of which any of its property or assets is the subject
which are not described in the Registration Statement,
including ordinary
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routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(xiv) There are no contracts or documents which are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits thereto by the Act or
the Investment Company Act which have not been so described
and filed as required.
(xv) The Trust owns or possesses, or can acquire on
reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks,
service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on
the business now operated by the Trust, and the Trust has not
received any notice or is not otherwise aware of any
infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Trust
therein, and which infringement or conflict (if the subject of
any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect; provided that the Trust's right to
use the name "BlackRock" is limited as set forth in Section 16
of the Management Agreement.
(xvi) No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree
of, any court or governmental authority or agency is necessary
or required for the performance by the Trust of its
obligations hereunder, in connection with the offering,
issuance or sale of the Shares hereunder or the consummation
of the transactions contemplated by this Agreement, except
such as have been already obtained or as may be required under
the Act, the Investment Company Act, the Securities Exchange
Act of 1934, as amended (the "1934 Act"), or state securities
laws.
(xvii) The Trust possesses such permits, licenses,
approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies
necessary to operate its properties and to conduct the
business as contemplated in the Prospectus; the Trust is in
compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not have a
Material Adverse Effect; and the Trust has not received any
notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material
Adverse Effect.
(xviii) Any advertising, sales literature or other
promotional material (including "prospectus wrappers," "broker
kits," "road show slides" and "road show scripts") authorized
in writing by or prepared by the Trust or the Advisors used in
connection with the public offering of the Shares
(collectively, "sales material") does not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading. Moreover, all sales
material complied and will comply in all material respects
with the applicable requirements of the Act, the Investment
Company Act and the rules and interpretations of the National
Association of Securities Dealers, Inc. ("NASD").
(xix) The Trust intends to direct the investment of
the proceeds of the offering described in the Registration
Statement in such a manner as to comply with the requirements
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of Subchapter M of the Internal Revenue Code of 1986, as
amended ("Subchapter M of the Code" and the "Code,"
respectively), and intends to qualify as a regulated
investment company under Subchapter M of the Code.
(xx) The Trust has not distributed and, prior to the
later to occur of (A) the Closing Date and (B) completion of
the distribution of the Shares, will not distribute any
offering material in connection with the offering and sale of
the Shares other than the Registration Statement, a
preliminary prospectus, the Prospectus or other materials, if
any, permitted by the Act or the Investment Company Act.
(xxi) The Trust maintains a system of internal
accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance
with management's general or specific authorization and with
the applicable requirements of the Investment Company Act and
the Code; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets and to maintain compliance with the
books and records requirements under the Investment Company
Act; (C) access to assets is permitted only in accordance with
the management's general or specific authorization; and (D)
the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(xxii) To the Trust's knowledge, neither the Trust
nor any employee or agent of the Trust has made any payment of
funds of the Trust or received or retained any funds, which
payment, receipt or retention of funds is of a character
required to be disclosed in the Prospectus.
(xxiii) This Agreement, the Management Agreement, the
Sub-Advisory Agreement, the Custodian Agreement and the
Transfer Agency Agreement have each been duly authorized by
all requisite action on the part of the Trust, executed and
delivered by the Trust, as of the dates noted therein, and
each complies with all applicable provisions of the Investment
Company Act. Assuming due authorization, execution and
delivery by the other parties thereto with respect to the
Custodian Agreement and the Transfer Agency Agreement, each of
the Management Agreement, the Sub-Advisory Agreement, the
Custodian Agreement and the Transfer Agency Agreement
constitutes a valid and binding agreement of the Trust,
enforceable against the Trust in accordance with its terms,
except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in
equity or at law).
(xxiv) There are no persons with registration rights
or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered
by the Trust under the Act.
(xxv) The Shares have been duly authorized for
listing, upon notice of issuance, on the New York Stock
Exchange ("NYSE") and the Trust's registration statement on
Form 8-A under the 1934 Act has become effective.
(b) The Advisors represent and warrant to each
Underwriter as of the date hereof and as of the Closing Date and each
Additional Time of Purchase, if any, referred to in Section 2 hereof
as follows:
(i) Each of the Advisors has been duly organized and
is validly existing and in good standing as a corporation
under the laws of the State of Delaware with full corporate
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power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and
each is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in
which such qualification is required.
(ii) Each of the Advisors is duly registered and in
good standing with the Commission as an investment adviser
under the Advisers Act, and is not prohibited by the Advisers
Act or the Investment Company Act, or the rules and
regulations under such acts, from acting under the Management
Agreement and the Sub-Advisory Agreement for the Trust as
contemplated by the Prospectus.
(iii) The description of each Advisor in the
Registration Statement and the Prospectus (and any amendment
or supplement to either of them) complied and comply in all
material respects with the provisions of the Act, the
Investment Company Act and the Advisers Act and is true and
correct in all material respects and does not contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(iv) Each of the Advisors has the financial resources
available to it necessary for the performance of its services
and obligations as contemplated in the Prospectus, this
Agreement and under the respective Management Agreement and
the Sub-Advisory Agreement to which it is a party.
(v) This Agreement, the Management Agreement, the
Sub-Advisory Agreement and the Shareholder Servicing
Agreement, by and between UBS Securities LLC and BAI (the
"Shareholder Servicing Agreement"), have each been duly
authorized, executed and delivered by each respective Advisor,
and the Management Agreement, the Sub-Advisory Agreement and
the Shareholder Servicing Agreement each constitute a valid
and binding obligation of each respective Advisor, enforceable
against each respective Advisor in accordance with its terms,
except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a
proceeding in equity or at law); and neither the execution and
delivery of this Agreement, the Management Agreement, the
Sub-Advisory Agreement or the Shareholder Servicing Agreement
nor the performance by either of the Advisors of its
obligations hereunder or thereunder will conflict with, or
result in a breach of any of the terms and provisions of, or
constitute, with or without the giving of notice or lapse of
time or both, a default under, any agreement or instrument to
which either Advisor is a party or by which it is bound, the
certificate of incorporation, the by-laws or other
organizational documents of each of the Advisors, or to each
Advisor's knowledge, by any law, order, decree, rule or
regulation applicable to it of any jurisdiction, court,
federal or state regulatory body, administrative agency or
other governmental body, stock exchange or securities
association having jurisdiction over the Advisors or their
respective properties or operations; and no consent, approval,
authorization or order of any court or governmental authority
or agency is required for the consummation by the Advisors of
the transactions contemplated by this Agreement, the
Management Agreement, the Sub-Advisory Agreement or the
Shareholder Servicing Agreement, except as have been obtained
or may be required under the Act, the Investment Company Act,
the 1934 Act or state securities laws. The representations and
warranties made by the Advisors in this paragraph in regards
to the Shareholder Servicing Agreement are made only as of the
Closing Date.
(vi) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, there has not
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occurred any event which should reasonably be expected to have
a material adverse effect on the ability of either Advisor to
perform its respective obligations under this Agreement and
the respective Management Agreement and Sub-Advisory Agreement
to which it is a party.
(vii) There is no action, suit, proceeding, inquiry
or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Advisors, threatened against or
affecting either of the Advisors or any "affiliated person" of
either of the Advisors (as such term is defined in the
Investment Company Act) or any partners, directors, officers
or employees of the foregoing, whether or not arising in the
ordinary course of business, which might reasonably be
expected to result in any material adverse change in the
condition, financial or otherwise, or earnings, business
affairs of either of the Advisors, materially and adversely
affect the properties or assets of either of the Advisors or
materially impair or adversely affect the ability of either of
the Advisors to function as an investment advisor or perform
its obligations under the Management Agreement or the
Sub-Advisory Agreement, or which is required to be disclosed
in the Registration Statement and the Prospectus.
(viii) Each Advisor is not in violation of its
certificate of incorporation, by-laws or other organizational
documents or in default under any agreement, indenture or
instrument except for such violations or defaults that would
not result in a material adverse effect on the respective
Advisor or a Material Adverse Effect on the Trust.
(c) Any certificate signed by any officer of the Trust
or the Advisors delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Trust
or the Advisors, as the case may be, to each Underwriter as to the
matters covered thereby.
4. CERTAIN COVENANTS OF THE TRUST AND THE ADVISORS
(a) The Trust and the Advisors, jointly and severally,
covenant with each Underwriter as follows:
(i) The Trust, subject to Section 4(a)(ii), will
comply with the requirements of Rule 430A or Rule 434, as
applicable, and will notify the Representatives immediately,
and confirm the notice in writing or by sending any relevant
copies of the following documents to the Representatives, (i)
when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed,
(ii) of the receipt of any comments from the Commission, (iii)
of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the
Shares for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such
purposes. The Trust will promptly effect the filings necessary
pursuant to Rule 497 of the Act and will take such steps as it
deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 497 was received
for filing by the Commission and, in the event that it was
not, it will promptly file such prospectus. The Trust will
make every reasonable effort to prevent the issuance of any
stop order, or order of suspension or revocation of
registration pursuant to Section 8(e) of the Investment
Company Act, and, if any such stop order or order of
suspension or revocation of registration is issued, to obtain
the lifting thereof at the earliest possible moment.
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(ii) The Trust will give the Representatives notice
of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule
462(b)) or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time
it became effective or to the Prospectus, will furnish the
Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the
case may be, and will not file or use any such document to
which the Representatives or counsel for the Underwriters
shall object.
(iii) The Trust has furnished or will deliver to the
Representatives and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein)
and signed copies of all consents and certificates of experts,
and will also deliver to the Representatives, without charge,
a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for
each of the Underwriters. The copies of the Registration
Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(iv) The Trust has delivered to each Underwriter,
without charge, as many copies of each preliminary prospectus
as such Underwriter reasonably requested, and the Trust hereby
consents to the use of such copies for purposes permitted by
the Act. The Trust will furnish to each Underwriter, without
charge, during the period when the Prospectus is required to
be delivered under the Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(v) If at any time when a prospectus is required by
the Act to be delivered in connection with sales of the
Shares, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of counsel for
the Underwriters or for the Trust, to amend the Registration
Statement or amend or supplement the Prospectus in order that
the Prospectus will not include any untrue statements of a
material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the
light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the
Registration Statement or amend or supplement the Prospectus
in order to comply with the requirements of the Act, the Trust
will promptly prepare and file with the Commission, subject to
Section 3(a)(ii), such amendment or supplement as may be
necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such
requirements, and the Trust will furnish to the Underwriters
such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(vi) The Trust will use its best efforts, in
cooperation with the Underwriters, to qualify the Shares for
offering and sale under the applicable securities laws of such
states and other jurisdictions of the United States as the
Representatives may designate and to maintain such
qualifications in effect for a period of not less than one
year from the later of the effective date of the Registration
Statement and any Rule 462(b) Registration Statement;
provided, however, that the Trust shall not be obligated to
file any general consent to service of process or to qualify
as a foreign statutory trust or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each
jurisdiction in
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which the Shares have been so qualified, the Trust will file
such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for
a period of not less than one year from the effective date of
the Registration Statement and any Rule 462(b) Registration
Statement.
(vii) The Trust will timely file such reports
pursuant to the 1934 Act as are necessary in order to make
generally available to its security holders as soon as
practicable an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of
Section 11(a) of the Act.
(viii) The Trust will use the net proceeds received
by it from the sale of the Shares in the manner specified in
the Prospectus under "Use of Proceeds."
(ix) The Trust will use its reasonable best efforts
to effect the listing of the Shares on the NYSE, subject to
notice of issuance, concurrently with the effectiveness of the
Registration Statement.
(x) During a period of 180 days from the date of the
Prospectus, the Trust will not, without the prior written
consent of UBS, (A) directly or indirectly, offer, pledge,
sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or
dispose of Shares or any securities convertible into or
exercisable or exchangeable for Shares or file any
registration statement under the Act with respect to any of
the foregoing or (B) enter into any swap or any other
agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of
ownership of the Shares, whether any such swap or transaction
described in clause (A) or (B) above is to be settled by
delivery of Shares or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (1) the
Shares to be sold hereunder or (2) Shares issued pursuant to
any dividend reinvestment plan.
(xi) The Trust, during the period when the Prospectus
is required to be delivered under the Act or the 1934 Act,
will file all documents required to be filed with the
Commission pursuant to the Investment Company Act and the 1934
Act within the time periods required by the Investment Company
Act, respectively.
(xii) The Trust will comply with the requirements of
Subchapter M of the Code to qualify as a regulated investment
company under the Code.
(xiii) The Trust will not (a) take, directly or
indirectly, any action designed to cause or to result in, or
that might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of
the Trust to facilitate the sale or resale of the Shares, and
(b) until the Closing Date (i) sell, bid for or purchase the
Shares or pay any person any compensation for soliciting
purchases of the Shares or (ii) pay or agree to pay to any
person any compensation for soliciting another to purchase any
other securities of the Trust .
(xiv) If the Trust elects to rely upon Rule 462(b),
the Trust shall file a Rule 462(b) Registration Statement with
the Commission in compliance with Rule 462(b) by no later than
10:00 P.M., Washington, D.C. time, on the day following the
date of this Agreement, and the Trust shall at the time of
filing either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule
111(b) under the Act.
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(xv) The Trust will pay all costs, expenses, fees and
taxes (other than any transfer taxes and fees and
disbursements of counsel for the Underwriters except as set
forth under Section 5 hereof and (iii), (iv) and (vi) below)
in connection with (i) the preparation and filing of the
Registration Statement, each preliminary prospectus, the
Prospectus, and any amendments or supplements thereto, and the
printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and
shipment), (ii) the registration, issue, sale and delivery of
the Shares, (iii) the producing, word processing and/or
printing of this Agreement, any Agreement Among Underwriters,
any dealer agreements, any Powers of Attorney and any closing
documents (including compilations thereof) and the
reproduction and/or printing and furnishing of copies of each
thereof to the Underwriters and (except closing documents) to
dealers (including costs of mailing and shipment), (iv) the
qualification of the Shares for offering and sale under state
laws and the determination of their eligibility for investment
under state law as aforesaid (including the legal fees and
filing fees and other disbursements of counsel for the
Underwriters) and the printing and furnishing of copies of any
blue sky surveys or legal investment surveys to the
Underwriters and to dealers, (v) any listing of the Shares on
any securities exchange or qualification of the Shares for
quotation on NASDAQ and any registration thereof under the
Exchange Act, (vi) any filing for review of the public
offering of the Shares by the NASD and (vii) the performance
of the Trust's other obligations hereunder. The Advisors have
agreed to pay organizational expenses and offering costs
(other than sales load) of the Trust that exceed $0.03 per
Common Share.
5. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Shares are not
delivered for any reason other than the termination of this Agreement pursuant
to the first two paragraphs of Section 7 hereof or the default by one or more of
the Underwriters in its or their respective obligations hereunder, the Trust
shall, in addition to paying the amounts described in Section 4(a)(xv) hereof,
reimburse the Underwriters for all of their out-of-pocket expenses, including
the fees and disbursements of their counsel.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the several Underwriters hereunder are subject to the accuracy in all material
respects of the representations and warranties of the Trust and the Advisors
contained in Section 3 hereof or in certificates of any officer of the Trust or
the Advisors delivered pursuant to the provisions hereof, to the performance by
the Trust and the Advisors of their respective covenants and other obligations
hereunder, and to the following further conditions:
(a) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective and at the Closing Date no
stop order suspending the effectiveness of the Registration Statement
shall have been issued under the Act, no notice or order pursuant to
Section 8(e) of the Investment Company Act shall have been issued, and
no proceedings with respect to either shall have been initiated or
threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing the Rule 430A information shall have been filed
with the Commission in accordance with Rule 497 (or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A).
(b) No amendment or supplement to the Registration Statement
or Prospectus shall be filed prior to the time the Registration
Statement becomes effective to which you object in writing.
(c) The Registration Statement shall become effective at or
before 5:00 P.M., New York City time, on the date of this Agreement,
unless a later time (but not later than 5:00 P.M., New York City time,
on the second full business day after the date of this Agreement) shall
be agreed to by the Trust and you in writing or by telephone, confirmed
in writing; PROVIDED, HOWEVER, that the Trust and
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CC DRAFT 9/18/03
you and any group of Underwriters, including you, who have agreed
hereunder to purchase in the aggregate at least 50% of the Firm Shares
may from time to time agree on a later date.
(d) Prior to the Time of Purchase, or the Additional Time of
Purchase, as the case may be, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading.
(e) At the Closing Date, the Representatives shall have
received the favorable opinions, dated as of the Closing Date, of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Trust, and
Xxxxxxx X. Xxxxxx, counsel for the Advisors, in form and substance
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letters for each of the other Underwriters
substantially to the effect set forth in EXHIBIT A hereto and to such
further effect as counsel to the Underwriters may reasonably request.
(f) At the Closing Date, the Representatives shall have
received the favorable opinion, dated as of the Closing Date, of
Clifford Chance US LLP, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other
Underwriters with respect to the matters set forth in clauses (A) (i),
(ii), (vi), (vii) (solely as to preemptive or other similar rights
arising by operation of law or under the charter or by-laws of the
Trust), (viii) through (x), inclusive, (xii), (xiv) (solely as to the
information in the Prospectus under "Description of Shares") and the
last paragraph of EXHIBIT A hereto. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York and the federal law of the United
States, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Trust and
certificates of public officials.
(g) At the Closing Date, there shall not have been, since the
earlier of the date hereof and the respective dates as of which
information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings or business
affairs of the Trust, whether or not arising in the ordinary course of
business, and the Representatives shall have received a certificate of
a duly authorized officer of the Trust and of the Treasurer of the
Trust and of the President or a Vice President or Managing Director of
each of the Advisors, dated as of the Closing Date, to the effect that
(i) there has been no such material adverse change, (ii) the
representations and warranties in Sections 3(a) and (b) hereof are true
and correct in all material respects with the same force and effect as
though expressly made at and as of the Closing Date, (iii) each of the
Trust and the Advisors, respectively, has complied in all material
respects with all agreements and satisfied in all material respects all
conditions on its part to be performed or satisfied at or prior to the
Closing Date, and (iv) no stop order suspending the effectiveness of
the Registration Statement, or order of suspension or revocation of
registration pursuant to Section 8(e) of the Investment Company Act,
has been issued and no proceedings for any such purpose have been
instituted or are pending or are contemplated by the Commission.
(h) At the time of the execution of this Agreement, the
Representatives shall have received from Deloitte & Touche LLP a letter
dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such
letter for each of the other Underwriters containing statements and
information of the type ordinarily included in accountants'
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CC DRAFT 9/18/03
"comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the
Registration Statement and the Prospectus.
(i) At the Closing Date, the Representatives shall have
received from Deloitte & Touche LLP a letter, dated as of the Closing
Date, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (e) of this Section, except
that the specified date referred to shall be a date not more than three
business days prior to the Closing Date.
(j) At the Closing Date, the Shares shall have been approved
for listing on the NYSE, subject only to official notice of issuance.
(k) At the Closing Date, UBS shall have received the
Shareholder Servicing Agreement, dated the Closing Date, as executed by
BlackRock Advisors, Inc.
(l) The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(m) In the event that the Underwriters exercise their option
provided in Section 1 hereof to purchase all or any portion of the
Additional Shares, the representations and warranties of the Trust
contained herein and the statements in any certificates furnished by
the Trust hereunder shall be true and correct as of each Additional
Time of Purchase and, at the relevant Additional Time of Purchase, the
Representatives shall have received:
(i) Certificates, dated such Additional Time of
Purchase, of a duly authorized officer of the Trust and of the
Treasurer of the Trust and of the President or a Vice
President or Managing Director of each of the Advisors
confirming that the information contained in the certificate
delivered by each of them at the Closing Date pursuant to
Section 6(d) hereof remains true and correct in all material
respects as of such Additional Time of Purchase.
(ii) The favorable opinion of Xxxxxxx, Arps, Slate,
Xxxxxxx & Xxxx LLP, counsel for the Trust, and Xxxxxxx X.
Xxxxxx, counsel for the Advisors, in form and substance
satisfactory to counsel for the Underwriters, dated such
Additional Time of Purchase, relating to the Additional Shares
to be purchased on such Additional Time of Purchase and
otherwise to the same effect as the opinion required by
Section 6(b) hereof.
(iii) The favorable opinion of Clifford Chance US
LLP, counsel for the Underwriters, dated such Additional Time
of Purchase, relating to the Additional Shares to be purchased
on such Additional Time of Purchase and otherwise to the same
effect as the opinion required by Section 6(c) hereof.
(iv) A letter from Deloitte & Touche LLP, in form and
substance satisfactory to the Representatives and dated such
Additional Time of Purchase, substantially in the same form
and substance as the letter furnished to the Representatives
pursuant to Section 6(f) hereof, except that the "specified
date" in the letter furnished pursuant to this paragraph shall
be a date not more than five days prior to such Additional
Time of Purchase.
(n) At the Closing Date and at each Additional Time of
Purchase, counsel for the Underwriters shall have been furnished with
such documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the
Shares as herein contemplated, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken by the
Trust and the Advisors in connection with the organization and
registration of the Trust under the Investment
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CC DRAFT 9/18/03
Company Act and the issuance and sale of the Shares as herein
contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
7. EFFECTIVE DATE OF AGREEMENT; TERMINATION. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of UBS, Xxxxxxx Xxxxx or any
group of Underwriters (which may include UBS or Xxxxxxx Xxxxx) which has agreed
to purchase in the aggregate at least 50% of the Firm Shares, if, since the
earlier of the time of execution of this Agreement or the respective dates as of
which information is given in the Registration Statement and Prospectus, (y)
there has been any material adverse change in the condition, financial or
otherwise, (other than as referred to in the Registration Statement and
Prospectus), or in the earnings, business affairs, operations or condition of
the Trust and its subsidiaries taken as a whole, which would, in your judgment
or in the judgment of such group of Underwriters, make it impracticable to
market the Shares, or (z) if, at any time prior to the Time of Purchase or, with
respect to the purchase of any Additional Shares, the Additional Time of
Purchase, as the case may be, trading in securities on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market shall have
been suspended or limitations or minimum prices shall have been established on
the New York Stock Exchange, the American Stock Exchange or the Nasdaq National
Market, or if a banking moratorium shall have been declared either by the United
States or New York State authorities, or if the United States shall have
declared war in accordance with its constitutional processes or there shall have
occurred any material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as, in UBS's judgment or in the judgment
of such group of Underwriters, to make it impracticable to market the Shares.
If you or any group of Underwriters elects to terminate this
Agreement as provided in this Section 7, the Trust and each other Underwriter
shall be notified promptly by letter or telegram.
If the sale to the Underwriters of the Shares, as contemplated
by this Agreement, is not carried out by the Underwriters for any reason
permitted under this Agreement or if such sale is not carried out because the
Trust shall be unable to comply with any of the terms of this Agreement, the
Trust shall not be under any obligation or liability under this Agreement
(except to the extent provided in Sections 4(a)(xv), 5 and 9 hereof), and the
Underwriters shall be under no obligation or liability to the Trust under this
Agreement (except to the extent provided in Section 9 hereof) or to one another
hereunder.
8. INCREASE IN UNDERWRITERS' COMMITMENTS. Subject to Sections 6
and 7, if any Underwriter shall default in its obligation to take up and pay for
the Firm Shares to be purchased by it hereunder (otherwise than for a reason
sufficient to justify the termination of this Agreement under the provisions of
Section 7 hereof) and if the number of Firm Shares which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total number of Firm Shares, the non-defaulting Underwriters shall
take up and pay for (in addition to the aggregate number of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares
agreed to be purchased by all such defaulting Underwriters, as hereinafter
provided. Such Shares shall be taken up and paid for by such non-defaulting
Underwriter or Underwriters in such amount or amounts as you may designate with
the consent of each Underwriter so designated or, in the event no such
designation is made, such Shares shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate number of
Firm Shares set opposite the names of such non-defaulting Underwriters in
Schedule A.
Without relieving any defaulting Underwriter from its
obligations hereunder, the Trust agrees with the non-defaulting Underwriters
that it will not sell any Firm Shares hereunder unless all of the Firm
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CC DRAFT 9/18/03
Shares are purchased by the Underwriters (or by substituted Underwriters
selected by you with the approval of the Trust or selected by the Trust with
your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Trust for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Trust or you shall have the right
to postpone the Time of Purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and Prospectus
and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to
and include any Underwriter substituted under this Section 8 with like effect as
if such substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Shares which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total number
of Shares which all Underwriters agreed to purchase hereunder, and if neither
the non-defaulting Underwriters nor the Trust shall make arrangements within the
five business day period stated above for the purchase of all the Shares which
the defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall be terminated without further act or deed and without any
liability on the part of the Trust to any non-defaulting Underwriter and without
any liability on the part of any non-defaulting Underwriter to the Trust.
Nothing in this paragraph, and no action taken hereunder, shall relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
9. INDEMNITY AND CONTRIBUTION.
(a) Each of the Trust and the Advisors, jointly and severally,
agrees to indemnify, defend and hold harmless each Underwriter, its
trustees, partners, directors and officers, and any person who controls
any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, and the successors and assigns of all of the
foregoing persons from and against any loss, damage, expense, liability
or claim (including the reasonable cost of investigation) which,
jointly or severally, any such Underwriter or any such person may incur
under the Act, the Exchange Act, the common law or otherwise, insofar
as such loss, damage, expense, liability or claim arises out of or is
based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment
thereof by the Trust) or in a Prospectus (the term Prospectus for the
purpose of this Section 9 being deemed to include any preliminary
prospectus, the Prospectus and the Prospectus as amended or
supplemented by the Trust), or arises out of or is based upon any
omission or alleged omission to state a material fact required to be
stated in either such Registration Statement or Prospectus or necessary
to make the statements made therein not misleading, except insofar as
any such loss, damage, expense, liability or claim arises out of or is
based upon any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information
concerning such underwriter furnished in writing by or on behalf of any
Underwriter through you to the Trust or the Advisor, expressly for use
with reference to such Underwriter in such Registration Statement or
such Prospectus or arises out of or is based upon any omission or
alleged omission to state a material fact in connection with such
information required to be stated in such Registration Statement or
such Prospectus or necessary to make such information not misleading,
PROVIDED, HOWEVER, that the indemnity agreement contained in this
subsection (a) with respect to any preliminary prospectus or amended
preliminary prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such
Underwriter) from whom the person asserting any such loss, damage,
expense, liability or claim purchased the Shares which is the subject
thereof if the Prospectus corrected any such alleged untrue statement
or omission and if such Underwriter failed to send or give a copy of
the Prospectus to such person at or prior to the written confirmation
of the sale of such Shares to such person, unless the failure is the
result of noncompliance by the Trust with paragraph (h) of Section 4
hereof.
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CC DRAFT 9/18/03
If any action, suit or proceeding (together, a "Proceeding")
is brought against an Underwriter or any such person in respect of
which indemnity may be sought against the Trust or the Advisors
pursuant to the foregoing paragraph, such Underwriter or such person
shall promptly notify the Trust and the Advisors in writing of the
institution of such Proceeding and the Trust or the Advisors shall
assume the defense of such Proceeding, including the employment of
counsel reasonably satisfactory to such indemnified party and payment
of all reasonable fees and expenses; PROVIDED, HOWEVER, that the
omission to so notify the Trust or the Advisors shall not relieve the
Trust or the Advisors from any liability which the Trust or the
Advisors may have to any Underwriter or any such person or otherwise.
Such Underwriter or such person shall have the right to employ its or
their own counsel in any such case, but the reasonable fees and
expenses of such counsel shall be at the expense of such Underwriter or
of such person unless the employment of such counsel shall have been
authorized in writing by the Trust or the Advisors, as the case may be,
in connection with the defense of such Proceeding or the Trust or the
Advisors shall not have, within a reasonable period of time in light of
the circumstances, employed counsel to have charge of the defense of
such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them
which are different from, additional to or in conflict with those
available to the Trust or the Advisors (in which case neither the Trust
nor the Advisors shall have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties), in any of
which events such reasonable fees and expenses shall be borne by the
Trust or the Advisors and paid as incurred (it being understood,
however, that the Trust or the Advisors shall not be liable for the
expenses of more than one separate counsel (in addition to any local
counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties
to such Proceeding). Neither the Trust nor the Advisors shall be liable
for any settlement of any Proceeding effected without its written
consent but if settled with the written consent of the Trust or the
Advisors, the Trust or the Advisors, as the case may be, agree to
indemnify and hold harmless any Underwriter and any such person from
and against any loss or liability by reason of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are
the subject matter of such Proceeding and does not include an admission
of fault, culpability or a failure to act, by or on behalf of such
indemnified party.
(b) Each Underwriter severally agrees to indemnify,
defend and hold harmless the Trust and the Advisors, and each of their
respective trustees, directors and officers, and any person who
controls the Trust or the Advisors within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons from and against any loss,
damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Trust or the Advisors
or any such person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of any untrue statement or omissions or
alleged untrue statement or omissions of a material fact contained in
and in conformity with information concerning such Underwriter
furnished in writing by or on behalf of such Underwriter through you to
the Trust or the Advisors expressly for use with reference to such
Underwriter in the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the
Trust) or in a Prospectus.
If any Proceeding is brought against the Trust, the Advisors
or any such person in respect of which indemnity may be sought against
any Underwriter pursuant to the foregoing paragraph, the Trust, the
Advisors or such person shall promptly notify such Underwriter in
writing of the institution of such Proceeding and such Underwriter
shall assume the defense of such Proceeding, including the employment
of counsel reasonably satisfactory to such indemnified party and
payment of all reasonable fees and expenses; PROVIDED, HOWEVER, that
the omission to so notify such Underwriter shall not relieve such
Underwriter from any liability which such Underwriter may have to the
Trust,
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CC DRAFT 9/18/03
the Advisors or any such person or otherwise. The Trust, the Advisors
or such person shall have the right to employ its own counsel in any
such case, but the reasonable fees and expenses of such counsel shall
be at the expense of the Trust, the Advisors or such person unless the
employment of such counsel shall have been authorized in writing by
such Underwriter in connection with the defense of such Proceeding or
such Underwriter shall not have, within a reasonable period of time in
light of the circumstances, employed counsel to have charge of the
defense of such Proceeding or such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or
them which are different from or additional to or in conflict with
those available to such Underwriter (in which case such Underwriter
shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties, but such Underwriter may
employ counsel and participate in the defense thereof but the
reasonable fees and expenses of such counsel shall be at the expense of
such Underwriter), in any of which events such reasonable fees and
expenses shall be borne by such Underwriter and paid as incurred (it
being understood, however, that such Underwriter shall not be liable
for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings
in the same jurisdiction representing the indemnified parties who are
parties to such Proceeding). No Underwriter shall be liable for any
settlement of any such Proceeding effected without the written consent
of such Underwriter but if settled with the written consent of such
Underwriter, such Underwriter agrees to indemnify and hold harmless the
Trust, the Advisors and any such person from and against any loss or
liability by reason of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened Proceeding in respect of which
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
Proceeding.
(c) In addition to the foregoing indemnification, the Trust
and the Advisors also, jointly and severally, agree to indemnify and
hold harmless each Underwriter and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section
9(a), as limited by the proviso set forth therein, with respect to any
sales material.
(d) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of
this Section 9 in respect of any losses, damages, expenses, liabilities
or claims referred to therein, then each applicable indemnifying party,
in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, damages, expenses, liabilities or claims (i) in such proportion
as is appropriate to reflect the relative benefits received by the
Trust and the Advisors on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Trust and the Advisors on the one hand and of the Underwriters on
the other in connection with the statements or omissions which resulted
in such losses, damages, expenses, liabilities or claims, as well as
any other relevant equitable considerations. The relative benefits
received by the Trust and the Advisors on the one hand and the
Underwriters on the other shall be deemed to be in the same respective
proportions as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses)
received by the Trust and the total underwriting discounts and
commissions received by the Underwriters, bear to the aggregate public
offering price of the Shares. The relative fault of the Trust and the
Advisors on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue
statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Trust or the
Advisors or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a
result of the losses, damages, expenses,
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CC DRAFT 9/18/03
liabilities and claims referred to in this subsection shall be deemed
to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating, preparing to defend or
defending any Proceeding.
(e) The Trust, the Advisors and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in subsection (c) above. Notwithstanding the
provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the Shares underwritten by such Underwriter and distributed to
the public were offered to the public exceeds the amount of any damage
which such Underwriter has otherwise been required to pay by reason of
such untrue statement or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant
to this Section 9 are several in proportion to their respective
underwriting commitments and not joint.
(f) The indemnity and contribution agreements contained in
this Section 9 and the covenants, warranties and representations of the
Trust contained in this Agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors or officers or any person
(including each partner, officer or director of such person) who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, or by or on behalf of the Trust or the
Advisors, its trustees, directors or officers or any person who
controls the Trust or the Advisors within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the issuance and delivery of the
Shares. The Trust and the Advisors and each Underwriter agree promptly
to notify each other of the commencement of any Proceeding against it
and, in the case of the Trust, against any of the Trust's or the
Advisors' trustees, officers or directors in connection with the
issuance and sale of the Shares, or in connection with the Registration
Statement or Prospectus.
10. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set
forth in the last paragraph on the cover page of the Prospectus and the
statements set forth in the "Underwriting" section of the Prospectus constitute
the only information furnished by or on behalf of the Underwriters as such
information is referred to in Sections 3 and 9 hereof.
11. Notwithstanding any other provision of this Agreement, from
the commencement of discussions with respect to the transactions contemplated
hereby, the Trust and its Advisors (and each employee, representative or other
agent of the Fund) may disclose to any and all persons, without limitation of
any kind, the tax treatment and tax structure (as such terms are used in
Sections 6011, 6111 and 6112 of the U.S. Code and the Treasury Regulations
promulgated thereunder) of the transactions contemplated by this Agreement and
all materials of any kind (including opinions or other tax analyses) that are
provided relating to such tax treatment and tax structure.
12. NOTICES. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, X.X. 10171-0026, Attention:
Syndicate Department and, if to the Trust or Advisors, shall be sufficient in
all respects if delivered or sent to the Trust at the offices of BlackRock
Financial Management, Inc. at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx X. Xxxxxxxxxxx.
13. GOVERNING LAW; CONSTRUCTION. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or
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CC DRAFT 9/18/03
indirectly, shall be governed by, and construed in accordance with, the laws of
the State of New York. The Section headings in this Agreement have been inserted
as a matter of convenience of reference and are not a part of this Agreement.
14. SUBMISSION TO JURISDICTION. Except as set forth below, no
Claim may be commenced, prosecuted or continued in any court other than the
courts of the State of New York located in the City and County of New York or in
the United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and the
Trust and Advisors consent to the jurisdiction of such courts and personal
service with respect thereto. The Trust and Advisors hereby consent to personal
jurisdiction, service and venue in any court in which any Claim arising out of
or in any way relating to this Agreement is brought by any third party against
UBS Securities LLC or any indemnified party. Each of UBS Securities LLC and the
Trust and Advisors (on its behalf and, to the extent permitted by applicable
law, on behalf of its stockholders and affiliates) waives all right to trial by
jury in any action, proceeding or counterclaim (whether based upon contract,
tort or otherwise) in any way arising out of or relating to this Agreement. The
Trust and Advisors agree that a final judgment in any such action, proceeding or
counterclaim brought in any such court shall be conclusive and binding upon the
Trust or the Advisors, as the case may be, and may be enforced in any other
courts in the jurisdiction of which the Trust or the Advisors, as the case may
be, is or may be subject, by suit upon such judgment.
15. PARTIES AT INTEREST. The Agreement herein set forth has been
and is made solely for the benefit of the Underwriters and the Trust and the
Advisors and to the extent provided in Section 9 hereof the controlling persons,
directors and officers referred to in such section, and their respective
successors, assigns, heirs, personal representatives and executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
16. COUNTERPARTS. This Agreement may be signed by the parties in
one or more counterparts which together shall constitute one and the same
agreement among the parties.
17. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
the Underwriters and the Trust and the Advisors and their successors and assigns
and any successor or assign of any substantial portion of the Trust's and the
Advisors' and any of the Underwriters' respective businesses and/or assets.
-20-
CC DRAFT 9/18/03
If the foregoing correctly sets forth the understanding among
the Trust, the Advisors and the Underwriters, please so indicate in the space
provided below for the purpose, whereupon this letter and your acceptance shall
constitute a binding agreement among the Trust, the Advisors and the
Underwriters, severally.
Very truly yours,
BlackRock Municipal 2020 Term Trust
By:
-----------------------------------------
Name:
Title:
BlackRock Advisors, Inc.
By:
-----------------------------------------
Name:
Title:
BlackRock Financial Management, Inc.
By:
-----------------------------------------
Name:
Title:
Accepted and agreed to as of the
date first above written, on
behalf of themselves and the
other several Underwriters
named in Schedule A
UBS SECURITIES LLC
By: UBS SECURITIES LLC
By: __________________________
Name:
Title:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By:
------------------------------------------------
Name:
Title:
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CC DRAFT 9/18/03
SCHEDULE A
NUMBER OF
UNDERWRITER FIRM SHARES
----------- -----------
UBS Securities LLC...............................................................
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
X.X. Xxxxxxx & Sons, Inc.
RBC Xxxx Xxxxxxxx Inc.
Wachovia Capital Markets, LLC
Xxxxx Fargo Securities, LLC
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc.
Xxxxxx Xxxxxxxxxx Xxxxx LLC
Xxxxxxxxxxx & Co. Inc.
Quick & Xxxxxx, Inc.
Xxxx Xxxx & Co.
Total...................................................................
=========
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CC DRAFT 9/18/03
Exhibit A
FORM OF OPINION OF TRUST'S AND ADVISORS'
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 6(e)
(A) With respect to the Trust:
(i) The Trust has been duly organized and is validly
existing as a statutory trust in good standing under the laws
of the State of Delaware.
(ii) The Trust has statutory trust power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to
enter into and perform its obligations under the
Underwriting
Agreement.
(iii) The Trust is duly qualified as a foreign
statutory trust to transact business and is in good standing
in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure
so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(iv) To the best of our knowledge, the Trust does not
have any subsidiaries.
(v) The authorized, issued and outstanding shares of
beneficial interest of the Trust is as set forth in the
Prospectus under the caption "Description of shares -- Common
Shares" (except for subsequent issuances, if any, pursuant to
the
Underwriting Agreement); all issued and outstanding shares
of beneficial interest of the Trust have been duly authorized
and validly issued and are fully paid and non-assessable,
except as provided for in the Trust's declaration of trust,
and have been offered and sold or exchanged by the Trust in
compliance with all applicable laws (including, without
limitation, federal and state securities laws); the Shares
conform as to legal matters to all statements relating thereto
contained in the Prospectus and such description conforms to
the rights set forth in the instruments defining the same; and
none of the outstanding shares of beneficial interest of the
Trust was issued in violation of the preemptive or other
similar rights of any securityholder of the Trust.
(vi) The Shares to be purchased by the Underwriters
from the Trust have been duly authorized for issuance and sale
to the Underwriters pursuant to the
Underwriting Agreement
and, when issued and delivered by the Trust pursuant to the
Underwriting Agreement against payment of the consideration
set forth in the
Underwriting Agreement, will be validly
issued and fully paid and non-assessable, except as provided
for in the Trust's declaration of trust, and no holder of the
Shares is or will be subject to personal liability by reason
of being such a holder.
(vii) The issuance of the Shares is not subject to
preemptive or other similar rights of any securityholder of
the Trust.
(viii) The
Underwriting Agreement has been duly
authorized, executed and delivered by the Trust.
(ix) The Registration Statement, including any Rule
462(b) Registration Statement, has been declared effective
under the Act; any required filing of the Prospectus pursuant
to Rule 497(c) or Rule 497(h) has been made in the manner and
within the time period required by Rule 497; and, to the best
of our knowledge, no stop order suspending the effectiveness
of the Registration Statement or any Rule 462(b) Registration
Statement has
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CC DRAFT 9/18/03
been issued under the Act, and, to the best of our knowledge,
no order of suspension or revocation of registration pursuant
to Section 8(e) of the Investment Company Act has been issued,
and no proceedings for any such purpose have been instituted
or are pending or threatened by the Commission.
(x) The Registration Statement, including any Rule
462(b) Registration Statement, the Rule 430A Information and
the Rule 434 Information, as applicable, the Prospectus and
each amendment or supplement to the Registration Statement and
Prospectus as of their respective effective or issue dates
(other than the financial statements and supporting schedules
included therein or omitted therefrom, as to which we need
express no opinion), and the notification on Form N-8A
complied as to form in all material respects with the
requirements of the Act, the Investment Company Act and the
Rules and Regulations.
(xi) If Rule 434 has been relied upon, the Prospectus
was not "materially different," as such term is used in Rule
434, from the prospectus included in the Registration
Statement at the time it became effective.
(xii) The form of certificate used to evidence the
Shares complies in all material respects with all applicable
statutory requirements, with any applicable requirements of
the declaration of trust and by-laws of the Trust and the
requirements of the New York Stock Exchange.
(xiii) To the best of our knowledge, there is not
pending or threatened any action, suit, proceeding, inquiry or
investigation, to which the Trust is a party, or to which the
property of the Trust is subject, before or brought by any
court or governmental agency or body, domestic or foreign,
which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets of
the Trust or the consummation of the transactions contemplated
in the
Underwriting Agreement or the performance by the Trust
of its obligations thereunder.
(xiv) The information in the Prospectus under
"Description of shares" and "Tax matters" and in the
Registration Statement under Item 29 (Indemnification), to the
extent that it constitutes matters of law, summaries of legal
matters, the Trust's declaration of trust and by-laws or legal
proceedings, or legal conclusions, has been reviewed by us and
is correct in all material respects.
(xv) Each of the Management Agreement, the
Sub-Advisory Agreement, the Custodian Agreement, the Transfer
Agency Agreement and the
Underwriting Agreement comply in all
material respects with all applicable provisions of the
Investment Company Act, Advisers Act, the Rules and
Regulations and the Advisers Act Rules and Regulations.
(xvi) The Trust is duly registered with the
Commission under the Investment Company Act as a closed-end,
diversified management investment company; and, to the best of
our knowledge, no order of suspension or revocation of such
registration has been issued or proceedings therefor initiated
or threatened by the Commission.
(xvii) To the best of our knowledge, no person is
serving as an officer, trustee or investment advisor of the
Trust except in accordance with the Investment Company Act and
the Rules and Regulations and the Investment Advisers Act and
the Advisers Act Rules and Regulations. Except as disclosed in
the Registration Statement and Prospectus (or any amendment or
supplement to either of them), to the best of our knowledge,
no trustee of the Trust is an "interested person" (as defined
in the Investment Company Act) of the Trust or an "affiliated
person" (as defined in the Investment Company Act) of an
Underwriter.
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CC DRAFT 9/18/03
(xviii) There are no statutes or regulations that are
required to be described in the Prospectus that are not
described as required.
(xix) All descriptions in the Registration Statement
of contracts and other documents to which the Trust is a party
are accurate in all material respects. To the best of our
knowledge, there are no franchises, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto, and the descriptions thereof or
references thereto are correct in all material respects.
(xx) To the best of our knowledge, the Trust is not
in violation of its declaration of trust or by-laws and no
default by the Trust exists in the due performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument that
is described or referred to in the Registration Statement or
the Prospectus or filed or incorporated by reference as an
exhibit to the Registration Statement.
(xxi) No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree
of, any court or governmental authority or agency (other than
under the Act, the 1934 Act, the Investment Company Act and
the Rules and Regulations, which have been obtained, or as may
be required under the securities or blue sky laws of the
various states, as to which we need express no opinion) is
necessary or required in connection with the due
authorization, execution and delivery of the Underwriting
Agreement or for the offering, issuance or sale of the Shares
or the consummation of the transactions contemplated by this
Agreement.
(xxii) The execution, delivery and performance of the
Underwriting Agreement and the consummation of the
transactions contemplated in the Underwriting Agreement and in
the Registration Statement (including the issuance and sale of
the Shares and the use of the proceeds from the sale of the
Shares as described in the Prospectus under the caption "Use
of Proceeds") and compliance by the Trust with its obligations
under the Underwriting Agreement do not and will not, whether
with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section 1(a)(xii) of the
Underwriting Agreement) under or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Trust pursuant to any contract,
indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or any other agreement or instrument, known to us,
to which the Trust is a party or by which it or any of them
may be bound, or to which any of the property or assets of the
Trust is subject, nor will such action result in any violation
of the provisions of the charter or by-laws of the Trust, or
any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign,
having jurisdiction over the Trust or any of its properties,
assets or operations.
(xxiii) The Underwriting Agreement, the Management
Agreement, the Sub-Advisory Agreement, the Custodian Agreement
and the Transfer Agency Agreement have each been duly
authorized by all requisite action on the part of the Trust,
executed and delivered by the Trust, as of the dates noted
therein. Assuming due authorization, execution and delivery by
the other parties thereto with respect to the Custodian
Agreement and the Transfer Agency Agreement, each of the
Management Agreement, the Sub-Advisory Agreement, the
Custodian Agreement and the Transfer Agency Agreement
constitutes a valid and binding agreement of the Trust,
enforceable in accordance with its terms, except as affected
by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and
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CC DRAFT 9/18/03
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing.
(B) With respect to the Advisors:
(i) Each Advisor has been duly organized and is
validly existing as a corporation in good standing under the
laws of the State of Delaware.
(ii) Each Advisor has full corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to
enter into and perform its obligations under the Underwriting
Agreement.
(iii) Each Advisor is duly qualified as a foreign
corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure
to so qualify would not result in a Material Adverse Effect.
(iv) Each Advisor is duly registered with the
Commission as an investment adviser under the Advisers Act and
is not prohibited by the Advisers Act, the Advisers Act Rules
and Regulations, the Investment Company Act or the Rules and
Regulations from acting under the Management Agreement for the
Trust as contemplated by the Prospectus.
(v) The Underwriting Agreement, the Management
Agreement and the Sub-Advisory Agreement have been duly
authorized, executed and delivered by the respective Advisor,
and the Management Agreement and the Sub-Advisory Agreement
each constitutes a valid and binding obligation of the
respective Advisor, enforceable in accordance with its terms,
except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a
proceeding in equity or at law).
(vi) To the best of our knowledge, there is not
pending or threatened any action, suit, proceeding, inquiry or
investigation, to which the Advisors are a party, or to which
the property of the Advisors is subject, before or brought by
any court or governmental agency or body, domestic or foreign,
which might reasonably be expected to result in any material
adverse change in the condition, financial or otherwise, in
the earnings, business affairs or business prospects of the
Advisors, materially and adversely affect the properties or
assets of the Advisors or materially impair or adversely
affect the ability of the Advisors to function as an
investment advisor or perform its obligations under the
Management Agreement or the Sub-Advisory Agreement, or which
is required to be disclosed in the Registration Statement or
the Prospectus.
(vii) To the best of our knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described or
referred to in the Registration Statement or to be filed as
exhibits thereto other than those described or referred to
therein or filed or incorporated by reference as exhibits
thereto, and the descriptions thereof or references thereto
are correct in all material respects.
(viii) To the best of our knowledge, each Advisor is
not in violation of its certificate of incorporation, by-laws
or other organizational documents and no default by the
Advisors exists in the due performance or observance of any
material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument that
is described or referred to in the Registration
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CC DRAFT 9/18/03
Statement or the Prospectus or filed or incorporated by
reference as an exhibit to the Registration Statement.
(ix) No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree
of, any court or governmental authority or agency, domestic or
foreign (other than under the Act, the Investment Company Act
and the Rules and Regulations, which have been obtained, or as
may be required under the securities or blue sky laws of the
various states, as to which we need express no opinion) is
necessary or required in connection with the due
authorization, execution and delivery of the Underwriting
Agreement.
(x) The execution, delivery and performance of the
Underwriting Agreement and the consummation of the
transactions contemplated in the Underwriting Agreement and in
the Registration Statement and compliance by the Advisors with
their obligations under the Underwriting Agreement do not and
will not, whether with or without the giving of notice or
lapse of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined in Section
1(a)(xii) of the Underwriting Agreement) under or result in
the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Advisors pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument,
known to us, to which the Advisors is a party or by which it
or any of them may be bound, or to which any of the property
or assets of the Advisors is subject (except for such
conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect),
nor will such action result in any violation of the provisions
of the charter or by-laws of the Advisors, or any applicable
law, statute, rule, regulation, judgment, order, writ or
decree, known to us, of any government, government
instrumentality or court, domestic or foreign, having
jurisdiction over the Advisors or any of its properties,
assets or operations.
In addition, we have participated in the preparation of the
Registration Statement and the Prospectus and participated in discussions with
certain officers, trustees and employees of the Trust, representatives of
Deloitte & Touche LLP, the independent accountants who examined the statement of
assets and liabilities of the Trust included or incorporated by reference in the
Registration Statement and the Prospectus, and you and your representatives and
we have reviewed certain Trust records and documents. While we have not
independently verified and are not passing upon, and do not assume any
responsibility for, the accuracy, completeness or fairness of the information
contained in the Registration Statement and the Prospectus, except to the extent
necessary to enable us to give the opinions with respect to the Trust in
paragraphs (A)(v), (xiv) and (xix), on the basis of such participation and
review, nothing has come to our attention that would lead us to believe that the
Registration Statement (except for financial statements, supporting schedules
and other financial data included therein or omitted therefrom and for
statistical information derived from such financial statements, supporting
schedules or other financial data, as to which we do not express any belief), at
the time such Registration Statement became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus (except for financial statements, supporting schedules and
other financial data included therein or omitted therefrom and for statistical
information derived from such financial statements, supporting schedules or
other financial data, as to which we do not express any belief), at the time the
Prospectus was issued, or at the Closing Date, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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