$81,000,000
XXXXXX MUNICIPAL OPPORTUNITIES TRUST
(a Massachusetts business trust)
REMARKETED PREFERRED SHARES ["RP"(R)]
1,620 Shares Series B
1,620 Shares Series C
Liquidation Preference $25,000 Per Share
PURCHASE AGREEMENT
July __, 1997
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center
North Tower
New York, New York 10281-1201
Dear Sirs and Mesdames:
Xxxxxx Municipal Opportunities Trust, a Massachusetts business trust
(the "Fund"), and Xxxxxx Investment Management, Inc., a Massachusetts
corporation (the "Adviser"), each confirms its agreement with Xxxxxxx Xxxxx &
Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated (the "Underwriter") with
respect to the sale by the Fund and the purchase by the Underwriter of 1,620
remarketed preferred shares of beneficial interest, Series B of the Fund (the
"Series B RP") and 1,620 remarketed preferred shares of beneficial interest,
Series C of the Fund (the "Series C RP"), all without par value and with a
liquidation preference of $25,000 per share plus an amount equal to accumulated
but unpaid dividends (whether or not earned or declared). The Series B RP and
Series C RP are herein collectively referred to as the "Shares".
--------------------------
(R) Registered trademark of Xxxxxxx Xxxxx & Co., Inc.
Prior to the purchase and public offering of the Shares by the
Underwriter, the Fund and the Underwriter shall enter into an agreement
substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication between the Fund and the Underwriter and shall specify
such applicable information as is indicated in Exhibit A hereto. The offering of
the Shares will be governed by this Agreement, as supplemented by the Pricing
Agreement. From and after the date of the execution and delivery of the Pricing
Agreement, this Agreement shall be deemed to incorporate the Pricing Agreement.
The Fund has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form N-2 (No. 333-25453) and a related
preliminary prospectus for the registration of the Shares under the Securities
Act of 1933, as amended (the "1933 Act"), which registration statement also
constitutes an amendment to the registration statement of the Fund under the
Investment Company Act of 1940, as amended (the "1940 Act"), and the published
rules and regulations of the Commission under the 1940 Act (together with the
published rules and regulations under the 1933 Act, the "Rules and Regulations")
and has filed such amendments to such registration statement on Form N-2, if
any, and such amended preliminary prospectuses as may have been required to the
date hereof. The Fund will prepare and file such additional amendments thereto
and such amended prospectuses as may hereafter be required pursuant to the terms
hereof. Such registration statement (as amended at the time it becomes
effective, if applicable) and the prospectus constituting a part thereof
(including in each case the information, if any, deemed to be part thereof
pursuant to Rule 430A(b) or Rule 434 of the Rules and Regulations), as from time
to time amended or supplemented pursuant to the 1933 Act, are hereinafter
referred to as the "Registration Statement" and the "Prospectus," respectively,
except that if any revised prospectus shall be provided to the Underwriter by
the Fund for use in connection with the offering of the Shares which differs
from the Prospectus on file at the Commission at the time the Registration
Statement becomes effective (whether such revised prospectus is required to be
filed by the Fund pursuant to Rule 497(c) or Rule 497(h) of the Rules and
Regulations) the term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to the Underwriter for such use. If the
Fund elects to rely on Rule 434 of the Rules and Regulations, all references to
the Prospectus shall be deemed to include, without limitation, the form of
prospectus and the term sheet, taken together, provided to the Underwriter by
the Fund in reliance on Rule 434 of the Rules and Regulations (the "Rule 434
Prospectus"). If the Fund files a registration statement to register a portion
of the Shares and relies on Rule 462(b) for such registration statement to
become effective upon filing with the Commission (the "Rule 462 Registration
Statement"), then any reference to "Registration
2.
Statement" herein shall be deemed to include both the registration statement
referred to above (No. 333-25453) and the Rule 462 Registration Statement, as
each such registration statement may be amended pursuant to the 1933 Act.
The Fund understands that the Underwriter proposes to make a public
offering of the Shares as soon as the Underwriter deems advisable after the
Registration Statement becomes effective and the Pricing Agreement has been
executed and delivered.
SECTION 1. Representations and Warranties. (a) The Fund and the Adviser
each severally represents and warrants to the Underwriter as of the date hereof
and as of the date of the Pricing Agreement (such latter date being hereinafter
referred to as the "Representation Date") as follows:
(i) At the time the Registration Statement becomes effective
and at the Representation Date, the Registration Statement will comply
in all material respects with the requirements of the 1933 Act, the
1940 Act and the Rules and Regulations 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. The Prospectus, at the Representation Date (unless the term
"Prospectus" refers to a prospectus which has been provided to the
Underwriter by the Fund for use in connection with the offering of the
Shares which differs from the Prospectus on file at the Commission at
the time the Registration Statement becomes effective, in which case at
the time it is first provided to the Underwriter for such use) and at
Closing Time referred to in Section 2, will not contain an untrue
statement of a material fact or 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; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Fund in writing by the Underwriter
expressly for use in the Registration Statement or Prospectus and, with
respect to the representations and warranties of the Fund, shall not
apply to the description of the Investment Manager contained in the
Prospectus under the caption "Investment Manager".
(ii) The accountants who certified the financial statements
included in the Registration Statement are independent public
accountants as required by the 1933 Act and the Rules and Regulations.
3.
(iii) The financial statements included in the Registration
Statement present fairly the financial position of the Fund as at the
dates indicated; and such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis.
(iv) Since the date as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, (a) there has been no material adverse change in the
condition, financial or otherwise, of the Fund, or in the earnings,
business affairs or business prospects of the Fund, whether or not
arising in the ordinary course of business, (b) there have been no
transactions entered into by the Fund which are material to the Fund
other than those in the ordinary course of business and (c) except for
regular monthly dividends on the outstanding common shares of
beneficial interest, without par value, of the Fund (the "Common
Shares") and the outstanding remarketed preferred shares of beneficial
interest, Series A of the Fund without par value and with a liquidation
preference of $50,000 per share, plus an amount equal to accumulated
but unpaid dividends (whether or not earned or declared) (the "Series A
RP"), there has been no dividend or distribution of any kind declared,
paid or made by the Fund on any class of its shares of beneficial
interest.
(v) The Fund has been duly established and is validly existing as a
voluntary association (commonly referred to as a business trust) under
the laws of The Commonwealth of Massachusetts; the Agreement and
Declaration of Trust, as it may have been amended (the "Declaration of
Trust"), pursuant to which the Fund was established, confers on the
trustees named therein, and their successors in trust, power and
authority to own, lease and operate its properties and conduct its
business as described in the Prospectus; the Fund is duly qualified to
transact business and is in good standing in each jurisdiction in which
such qualification is required or is subject to no material liability
or disability by reason of the failure to be so qualified in any such
jurisdiction; and the Fund has no subsidiaries.
(vi) The Fund has filed with the Commission a notification on Form
N-8A of the registration of the Fund as a closed-end, non-diversified
management investment company under the 1940 Act and is registered with
the Commission under the 1940 Act as a closed-end, non-diversified
management investment company.
(vii) The authorized, issued and outstanding Common Shares and
shares of Series A RP of the Fund are as set
4.
forth in the Prospectus under the caption "Capitalization"; the
outstanding Common Shares and shares of Series A RP have been duly
authorized and validly issued and are fully paid and nonassessable
(except as set forth in the Prospectus); the Shares have been duly
authorized for issuance and sale to the Underwriter pursuant to this
Agreement and, when issued and delivered by the Fund pursuant to this
Agreement against payment of the consideration set forth in the Pricing
Agreement, will be validly issued and fully paid and nonassessable
(except as set forth in the Prospectus); the Common Shares, the shares
of Series A RP and the Shares conform in all material respects to all
statements relating thereto contained in the Prospectus; the issuance
of the Shares to be purchased by the Underwriter is not subject to
preemptive or other similar rights; and this Agreement and the Pricing
Agreement have been duly authorized, executed and delivered by the
Fund.
(viii) The Fund is not in violation of its Declaration of Trust or
the amended and restated by-laws of the Fund (the "By-laws") or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it or its properties may be bound; and
the execution, delivery and performance of this Agreement, the Pricing
Agreement and the Management Contract (as used herein, the "Management
Contract") and the Custodian Agreement dated May 3, 1991 among the
Fund, certain affiliates of the Fund and Xxxxxx Fiduciary Trust Company
(the "Custodian Agreement") and the Investor Servicing Agreement dated
July 1, 1991 pursuant to which Xxxxxx Fiduciary Trust Company acts as
the dividend disbursing agent, transfer agent and registrar of the
Fund's Common Shares (the "Investor Servicing Agreement") and the
Letter of Representations to be entered into by the Fund, Bankers Trust
Company and The Depository Trust Company (the "Letter of
Representations") and the Remarketing Agreement and the Paying Agent
Agreement referred to in the Registration Statement (the "Remarketing
Agreement" and the "Paying Agent Agreement," respectively) and the
consummation of the transactions contemplated herein and therein have
been duly authorized by all necessary trust action and do not and will
not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Fund pursuant to any material
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Fund is a party or by which it may be bound or
to which any of the property or assets of the Fund is subject; nor does
or will such action result in any violation of the provisions of the
Declaration of Trust or the By-laws or, to
5.
the best of its knowledge, any law, administrative regulation or
administrative or court decree; and no consent, approval, authorization
or order of any court or governmental authority or agency is required
for the consummation by the Fund of the transactions contemplated by
this Agreement, the Pricing Agreement, the Management Contract, the
Investor Servicing Agreement, the Custodian Agreement, the Remarketing
Agreement, the Paying Agent Agreement or the Letter of Representations,
except such as has been obtained under the 1940 Act or as may be
required under the 1933 Act, or state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriter.
(ix) The Management Contract, the Investor Servicing Agreement and
the Custodian Agreement have each been duly authorized, executed and
delivered by the Fund and comply with all applicable provisions of the
1940 Act.
(x) The Fund owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to
operate its properties and to carry on its business as contemplated in
the Prospectus.
(xi) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Fund, threatened against the Fund which might
result in any material adverse change in the condition, financial or
otherwise, business affairs or business prospects of the Fund, or might
materially and adversely affect the properties or assets of the Fund;
and there are no material contracts or documents of the Fund which are
required to be filed as exhibits to the Registration Statement by the
1933 Act, the 1940 Act or by the Rules and Regulations which have not
been so filed.
(xii) Except for the trademark "RP"(R), the Fund owns or possesses,
or can acquire on reasonable terms, adequate trademarks, service marks
and trade names necessary to conduct the business now operated by it,
and the Fund has not received any notice of infringement of or conflict
with asserted rights of others with respect to any trademarks, service
marks or trade names which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would materially
adversely affect the conduct of the business, operations, financial
condition or income of the Fund.
(xiii) The Remarketing Agreement, the Paying Agent Agreement and
the Letter of Representations have each been
6.
duly authorized for execution and delivery by the Fund and, when
executed and delivered by the Fund, will each constitute a valid and
binding obligation of the Fund, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights
and to general equity principles.
(b) The Adviser represents and warrants to the Underwriter
as follows:
(i) The Adviser has been duly incorporated as a corporation under
the laws of The Commonwealth of Massachusetts with corporate power and
authority to conduct its business as described in the Prospectus.
(ii) The Adviser is duly registered as an investment adviser under
the Investment Advisers Act of 1940, as amended (the "Advisers Act"),
and is not prohibited by the Advisers Act or the 1940 Act, or the rules
and regulations under such Acts, from acting under the Management
Contract for the Fund as contemplated by the Prospectus.
(iii) This Agreement has been duly authorized, executed and
delivered by the Adviser; the Management Contract has been duly
authorized, executed and delivered by the Adviser and constitutes a
valid and binding obligation of the Adviser, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights
and to general equity principles; and neither the execution and
delivery of this Agreement or the Management Contract nor the
performance by the Adviser of its obligations hereunder or thereunder
conflict with or will conflict with, or result in a breach of, any of
the terms and provisions of, or constitute, with or without giving
notice or lapse of time or both, a default under, any material
agreement or instrument to which the Adviser is a party or by which the
Adviser is bound, or any law, order, rule of 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 Adviser or its
properties or operations.
(iv) The Adviser has the financial resources available for the
performance of its services and obligations as contemplated in the
Prospectus.
(c) Any certificate signed by any officer of the Fund or the Adviser
and delivered to the Underwriter or to counsel for the Underwriter shall be
deemed a representation and warranty by
7.
the Fund or the Adviser, as the case may be, to the Underwriter
as to the matters covered thereby.
SECTION 2. Sale and Delivery to the Underwriters; Closing. (a) On the
basis of the representations and warranties herein contained and subject to the
terms and conditions herein set forth, the Fund agrees to sell the Shares to the
Underwriter and the Underwriter agrees to purchase the Shares from the Fund at
the price per share set forth in the Pricing Agreement.
(1) If the Fund has elected not to rely upon Rule 430A under the
Rules and Regulations, the initial public offering price and the
purchase price per share to be paid by the Underwriters for the Shares
have each been determined and set forth in the Pricing Agreement, dated
the date hereof, and an amendment to the Registration Statement and the
Prospectus will be filed before the Registration Statement becomes
effective.
(2) If the Fund has elected to rely upon Rule 430A under the Rules
and Regulations, the purchase price per share to be paid by the
Underwriter for the Shares shall be an amount equal to the applicable
initial public offering price, less an amount to be determined by
agreement between the Underwriter and the Fund. The initial public
offering price per share shall be a fixed price to be determined by
agreement between the Underwriter and the Fund. The initial public
offering price and the purchase price, when so determined, shall be set
forth in the Pricing Agreement. In the event that such prices have not
been agreed upon and the Pricing Agreement has not been executed and
delivered by all parties thereto by the close of business on the
fourteenth business day following the date of this Agreement, this
Agreement shall terminate forthwith, without liability of any party to
any other party, except as provided in Section 5, unless otherwise
agreed to by the Fund, the Adviser and the Underwriter.
(b) Payment of the purchase price for, and delivery of certificates
for, the Shares shall be made at the office of Brown & Wood LLP, One World Trade
Center, New York, New York 10048-0557 or at such other place as shall be agreed
upon by the Underwriter and the Fund, at 9:00 A.M. on the third business day
following the date the Registration Statement becomes effective or, if the Fund
has elected to rely upon Rule 430A of the Rules and Regulations, the third
business day after execution of the Pricing Agreement, (or, if pricing takes
place after 4:30 P.M. on either the date the Registration Statement becomes
effective or the date of execution of the Pricing Agreement, as applicable, the
fourth business day after such applicable date), or such other time not later
than ten business days after such date as shall be agreed upon by the
Underwriter and the Fund (such time
8.
and date of payment and delivery being herein called "Closing Time"). Payment
shall be made to the Fund by Federal funds check or checks or similar same-day
funds payable to the order of the Fund, against delivery to the Underwriter for
its account of certificates for the Shares to be purchased by the Underwriter.
The Series B RP and Series C RP each shall be represented by a certificate
registered in the name of Cede & Co., as nominee for The Depository Trust
Company. The certificates for the Shares will be made available for examination
and packaging by the Underwriters not later than 10:00 A.M. on the last business
day prior to Closing Time.
SECTION 3. Covenants of the Fund. The Fund covenants with
the Underwriter as follows:
(a) The Fund will use its best efforts to cause the Registration
Statement to become effective under the 1933 Act, and will advise the
Underwriter promptly as to the time at which the Registration Statement becomes
so effective.
(b) The Fund will notify the Underwriter immediately, and confirm the
notice in writing, (i) of the effectiveness of the Registration Statement and
any amendment thereto (including any post-effective amendment), (ii) when the
Prospectus has been timely filed pursuant to Rule 497(c) or Rule 497(h) of the
Rules and Regulations, whichever is applicable under the Rules and Regulations,
(iii) of the receipt by the Fund of any comments from the Commission, (iv) of
any request by the Commission to the Fund for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, and (v) of the issuance to the Fund by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Fund will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
If the Fund elects to rely on Rule 434 of the Rules and Regulations, the Fund
will prepare a term sheet that complies with the requirements of Rule 434 of the
Rules and Regulations and the Fund will provide the Underwriter with copies of
the form of Rule 434 Prospectus, in such number as the Underwriters may
reasonably request by the close of business in New York on the business day
immediately succeeding the date of the Pricing Agreement.
(c) During any period in which the Underwriter is required to deliver a
prospectus in connection with the sale or offer of Shares until 90 days after
the Closing Time, the Fund will give the Underwriter notice of its intention to
file any amendment to the Registration Statement (including any post-effective
amendment) or any amendment or supplement to the Prospectus (including any
revised prospectus which the Fund proposes for use
9.
by the Underwriter in connection with the offering of the Shares, which differs
from the prospectus on file at the Commission at the time the Registration
Statement becomes effective, whether such revised prospectus is required to be
filed pursuant to Rule 497(c) or Rule 497(h) of the Rules and Regulations, or
any term sheet prepared in reliance on Rule 434 of the Rules and Regulations),
whether pursuant to the 1940 Act, the 1933 Act, or otherwise, and will furnish
the Underwriter with copies of any such amendment or supplement a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file any such amendment or supplement to which the Underwriter or
counsel for the Underwriter shall reasonably object.
(d) The Fund will deliver to the Underwriter, as soon as practicable,
two signed copies of the Registration Statement as originally filed and of each
amendment thereto, in each case with two sets of the exhibits filed therewith,
and will also deliver to the Underwriter a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (but without
exhibits to the Registration Statement or any such amendment) for the
Underwriter.
(e) The Fund will furnish to the Underwriter, from time to time during
the period when the Prospectus is required to be delivered under the 1933 Act
until 90 days after the Closing Time, such number of copies of the Prospectus
(as amended or supplemented) as the Underwriter may reasonably request for the
purposes contemplated by the 1933 Act, the 1940 Act or the Rules and
Regulations.
(f) During any period in which the Underwriter is required to deliver a
prospectus in connection with the sale or offer of Shares until 90 days after
the Closing Time, if any event shall occur as a result of which it is necessary,
in the reasonable opinion of counsel for the Underwriter, to amend or supplement
the Prospectus in order to make the Prospectus not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, the Fund
will forthwith amend or supplement the Prospectus by preparing and furnishing to
the Underwriter a reasonable number of copies of an amendment or amendments of,
or a supplement or supplements to, the Prospectus (in form and substance
reasonably satisfactory to counsel for the underwriters), so that, as so amended
or supplemented, the Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, not misleading; and, in case the
Underwriter is required to deliver a Prospectus nine months or more after the
effective date of the Registration Statement in connection with sales of any of
the Shares, the Fund will prepare promptly, upon request of such Underwriter,
and at the expense of such Underwriter, such
10.
amendment or amendments to the Registration Statement, and such Prospectus, as
may be necessary to permit compliance with the 1933 Act, the 1940 Act and the
Rules and Regulations.
(g) The Fund will endeavor, in cooperation with the Underwriter, 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 Underwriter may
designate, and will maintain such qualifications in effect for a period of not
less than one year after the date hereof. The Fund will file such statements and
reports as may be required by the laws of each jurisdiction in which the Shares
have been qualified as above provided; provided, however, the Fund shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction where it is not now so qualified or
required to file such a consent.
(h) The Fund will make generally available to its security holders as
soon as practicable, but not later than 60 days after the close of the period
covered thereby an earning statement (in form complying with the provisions of
Rule 158 of the Rules and Regulations) covering a twelve month period beginning
not later than the first day of the Fund's fiscal quarter next following the
"effective" date (as defined in said Rule 158) of the Registration Statement.
(i) If, at the time that the Registration Statement becomes effective,
any information shall have been omitted therefrom in reliance upon Rule 430A of
the Rules and Regulations, then immediately following the execution of the
Pricing Agreement, the Fund will prepare, and file or transmit for filing with
the Commission in accordance with such Rule 430A and Rule 497(h) of the Rules
and Regulations copies of an amended Prospectus or, if required by such Rule
430A, a post-effective amendment to the Registration Statement (including an
amended Prospectus) containing all information so omitted.
(j) Until 30 days after the date of this Agreement, the Fund will not,
without the Underwriter's prior consent, offer or sell, or enter into any
agreement to sell, any equity related securities of the Fund other than the
Shares and the Common Shares issued in reinvestment of dividends or
distributions.
SECTION 4. Covenants of the Underwriter. The Underwriter covenants and
agrees with the Fund that as soon as practicable after Closing Time, but not
later than the fifth business day after Closing Time, the Underwriter will
provide the Fund and the Paying Agent with (i) a list of the Beneficial Owners
(as such term is defined in the By-Laws of the Fund) (other than the
Underwriter) in whose names Shares are to be registered in the books to be
maintained by the Paying Agent and the respective numbers of Shares acquired by
such Beneficial Owners from the
11.
Underwriter and (ii) the number of Shares they are holding as Beneficial Owners
for their own account and (on an aggregate basis) as nominee for the accounts of
others as of the date of such notice.
SECTION 5. Payment of Expenses. The Fund will pay all expenses incident
to the performance of its obligations under this Agreement, including, but not
limited to, expenses relating to (i) the printing and filing of the registration
statement as originally filed and of each amendment thereto, (ii) the
preparation, issuance and delivery of the certificates for the Shares to the
Underwriter, (iii) the fees and disbursements of the Fund's counsel and
accountants, (iv) the qualification of the Shares under securities laws in
accordance with the provisions of Section 3(g) of this Agreement, including
filing fees and any reasonable fees or disbursements of counsel for the
Underwriter in connection therewith and in connection with the preparation of
the Blue Sky Survey, (v) the printing and delivery to the Underwriter of copies
of the registration statement as originally filed and of each amendment thereto,
of the preliminary prospectuses and of the Prospectus and any amendments or
supplements thereto, (vi) the printing and delivery to the Underwriter of copies
of the Blue Sky Survey and (vii) the fees charged by rating agencies for the
rating of the Shares.
If this Agreement is terminated by the Underwriter because of the
failure of the Fund or the Adviser to comply with the terms of this Agreement or
to use its best efforts to satisfy the conditions of this Agreement, the Fund or
the Adviser shall reimburse the Underwriter for all of their reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriter.
SECTION 6. Conditions of Underwriter's Obligations. The obligations of
the Underwriter hereunder are subject to the accuracy of the representations and
warranties of the Fund and the Adviser herein contained, to the performance by
the Fund and the Adviser of their respective obligations hereunder, and to the
following further conditions:
(a) The Registration Statement shall have become effective not later
than 5:30 P.M. on the date hereof, or with the consent of the Underwriter, at a
later time and date not later, however, than 5:30 P.M. on the first business day
following the date hereof, or at such later time and date as may be approved by
the Underwriter, and at Closing Time no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. If the Fund has
elected to rely upon Rule 430A of the Rules and Regulations, the price of the
Shares and any price-related information previously omitted from the effective
Registration Statement pursuant to such Rule 430A
12.
shall have been transmitted to the Commission for filing pursuant to Rule 497(h)
of the Rules and Regulations within the prescribed time period, and prior to
Closing Time the Fund shall have provided evidence satisfactory to the
Underwriter of such timely filing, or a post-effective amendment providing such
information shall have been promptly filed and declared effective in accordance
with the requirements of Rule 430A of the Rules and Regulations.
(b) At Closing Time the Underwriters shall have received:
(1) The favorable opinion, dated as of Closing Time, of Ropes &
Gray, counsel for the Fund, in form and substance satisfactory to
counsel for the Underwriter, to the effect that:
(i) The Fund has been duly organized and is validly
existing as an unincorporated association commonly referred to
as a business trust under the laws of The Commonwealth of
Massachusetts.
(ii) The Fund has power and authority to own, lease and
operate its properties and conduct its business as described
in the Registration Statement and the Prospectus.
(iii) The outstanding Common Shares have been duly
authorized and validly issued and are fully paid and
nonassessable (except as set forth in the Prospectus).
(iv) The Shares have been duly authorized for issuance and
sale to the Underwriter pursuant to this Agreement and, when
issued and delivered by the Fund pursuant to this Agreement
against payment of the consideration set forth in the Pricing
Agreement, will be validly issued and fully paid and
nonassessable (except as set forth in the Prospectus); and the
issuance of the Shares is not subject to preemptive or other
similar rights.
(v) Each of this Agreement and the Pricing Agreement has
been duly authorized, executed and delivered by the Fund.
(vi) The Registration Statement is effective under the
1933 Act and, to their knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
13.
(vii) At the time the Registration Statement became
effective and at the Representation Date, the Registration
Statement (other than the financial statements and other
financial data included therein, as to which no opinion need
be rendered) complied as to form in all material respects with
the requirements of the 1933 Act, the 1940 Act and the Rules
and Regulations. The Rule 434 Prospectus conforms to the
requirements of Rule 434 in all material respects.
(viii) The authorized shares of beneficial interest of the
Fund conform in all material respects to the description
thereof contained in the Prospectus under the captions
"Description of RP" and "Description of Shares", and the form
of certificate used to evidence the Shares are in proper form
and comply with all applicable statutory requirements.
(ix) To their knowledge, there are no legal or
governmental proceedings pending or threatened against the
Fund which are required to be disclosed in the Registration
Statement, other than those disclosed therein.
(x) To their knowledge, (i) there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other
instruments of the Fund required to be described in the
Registration Statement or to be filed as exhibits thereto
which are not so described therein or filed as exhibits
thereto, and (ii) the descriptions thereof are correct in all
material respects.
(xi) No consent, approval, authorization or order of any
court or governmental authority or agency is required in
connection with the sale of the Shares to the Underwriter,
except such as has been obtained under the 1933 Act, the 1940
Act or the Rules and Regulations or such as may be required
under state securities laws; and to their knowledge, the
execution and delivery of this Agreement, the Pricing
Agreement, the Remarketing Agreement, the Paying Agent
Agreement or the Letter of Representations and the
consummation of the transactions contemplated herein and
therein, will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Fund pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Fund
is a party or by which it may be bound or to which any of the
property or assets of the Fund is subject, nor to their
knowledge will
14.
such action result in any violation of the provisions of the
Declaration of Trust or By-laws, or any law, administrative
regulation or administrative or court decree.
(xii) The Management Contract and the Custodian Agreement
have each been duly authorized, executed and delivered by the
Fund; the Management Contract complies with Section 15(a) of
the 1940 Act and the Custodian Agreement complies, in all
material respects, with all applicable provisions of the 1940
Act.
(xiii) The Fund is registered with the Commission under
the 1940 Act as a closed-end, non-diversified management
investment company, and all required action has been taken by
the Fund under the 1940 Act and the published rules and
regulations thereunder to make the public offering and
consummate the sale of the Shares pursuant to this Agreement;
and the provisions of the Declaration of Trust and the By-laws
comply as to form in all material respects with the
requirements of the 1940 Act.
(xiv) The information in the Prospectus under the caption
"Taxation", to the extent that it constitutes matters of law
or legal conclusions, provides a fair summary of such law or
conclusions.
(xv) The Remarketing Agreement, the Paying Agent Agreement
and the Letter of Representations each have been duly
authorized, executed and delivered by the Fund.
(2) The favorable opinion, dated as of Closing Time, of Xxxxxxx X.
Xxxxxxxxxx, Esq., general counsel to the Adviser, in form and substance
satisfactory to counsel for the Underwriter, to the effect that:
(i) The Adviser has been duly organized as a corporation
under the laws of The Commonwealth of Massachusetts with
corporate power and authority to conduct its business as
described in the Prospectus.
(ii) The Adviser is duly registered as an investment
adviser under the Advisers Act and is not prohibited by the
Advisers Act or the 1940 Act, or the rules and regulations
under such Acts, from acting under the Management Contract for
the Fund as contemplated by the Prospectus.
(iii) This Agreement has been duly authorized, executed
and delivered by the Adviser; the Management
15.
Contract is in full force and effect and constitutes a valid
and binding obligation of the Adviser, enforceable in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization or other laws relating
to or affecting creditors' rights and to general equity
principles; and, to the best of his knowledge and information,
neither the execution and delivery of this Agreement or the
Management Contract nor the performance by the Adviser 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 giving notice or lapse of time or
both, a default under, any material agreement or instrument to
which it is a party or by which the Adviser is bound, or any
law, order, rule or regulation applicable to the Adviser of
any jurisdiction, court, Federal or state regulatory body,
administrative agency or other governmental body, stock
exchange or securities association having jurisdiction over
the Adviser or its respective properties or operations.
(iv) To the best of such counsel's knowledge and
information, the description of the Adviser in the
Registration Statement and the Prospectus does not contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading.
(v) To the best of such counsel's knowledge and
information, no default by the Fund exists in the due
performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, loan agreement, note or lease described in the
Registration Statement or filed as exhibits thereto.
(3) The favorable opinion, dated as of Closing Time, of Xxxxx &
Wood LLP, counsel for the Underwriter, with respect to the matters set
forth in (i), (iv) to (vii), inclusive, and (xiii) of subsection (b)(1)
of this Section.
(4) In giving their opinions required by subsection (b)(1) and
(b)(3), respectively, of this Section, Ropes & Gray and Brown & Wood
LLP shall each additionally state that nothing has come to their
attention that would lead them to believe that the Registration
Statement (excluding the financial statements and other financial data
included therein, as to which such counsel need express no belief), at
the time it became effective or at the Representation Date, contained
an untrue statement of a material fact or
16.
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 the financial statements and other financial
data included therein, as to which such counsel need express no
belief), at the Representation Date (unless the term "Prospectus"
refers to a prospectus which has been provided to the Underwriter by
the Fund for use in connection with the offering of the Shares which
differs from the Prospectus on file at the Commission at the time the
Registration Statement becomes effective, in which case at the time it
is first provided to the Underwriter for such use) or at Closing Time,
included an untrue statement of a material fact or omitted 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.
In giving their opinion, Ropes & Xxxx may state that their opinion is
limited to matters governed by the Federal laws of the United States
and the laws of The Commonwealth of Massachusetts. In giving their
opinion, Xxxxx & Wood LLP may rely as to matters involving the laws of
The Commonwealth of Massachusetts upon the opinion of Ropes & Gray.
Xxxxx & Xxxx, Xx. Xxxxxxxxxx, Xxxxx & Xxxx LLP and Xxxxxxx & Xxxxxxx
L.L.P. may rely, as to matters of fact, upon certificates and written
statements of officers and employees of and accountants for the Fund
and the Adviser.
(c) At Closing Time (i) the Registration Statement and the Prospectus
shall contain all statements which are required to be stated therein in
accordance with the 1933 Act, the 1940 Act and the Rules and Regulations and in
all material respects shall conform to the requirements of the 1933 Act, the
1940 Act and the Rules and Regulations, and the Prospectus shall not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein in the light of the circumstances under which
they were made, not misleading and no action, suit or proceeding at law or in
equity shall be pending or, to the knowledge of the Fund or the Adviser,
threatened against the Fund or the Adviser which would be required to be set
forth in the Prospectus other than as set forth therein, (ii) there shall not
have been, since the date as of which information is given in the Prospectus,
any material adverse change in the condition, financial or otherwise, of the
Fund or in its earnings, business affairs or business prospects, whether or not
arising in the ordinary course of business, from that set forth in the
Prospectus, (iii) the Adviser shall have the financial resources available to it
necessary for the performance of its services and obligations as contemplated in
the Registration Statement and the Prospectus, (iv) no proceedings shall be
pending or, to the knowledge of the Fund or the Adviser, threatened against the
Fund or the Adviser before or by any Federal, state or other commission, board
or administrative
17.
agency wherein an unfavorable decision, ruling or finding would materially and
adversely affect the business, property, financial condition or income of either
the Fund or the Adviser other than as set forth in the Registration Statement
and the Prospectus and (v) Xxxxx'x Investors Service, Inc. ("Moody's") and
Standard & Poor's Ratings Services ("S&P") shall have confirmed that the Shares
have been rated "aaa" and AAA, respectively, by such agencies; and the
Underwriter shall have received, at Closing Time, a certificate of the Fund
signed by the President or Treasurer of the Fund and of the Adviser signed by
the President, a Managing Director or a Vice President of the Adviser dated as
of Closing Time, evidencing compliance with the appropriate provisions of this
subsection (c), together with true and correct copies of letters from Moody's
and S&P confirming their rating. As used in this subsection (c), the term
"Prospectus" means the Prospectus in the form first used to confirm sales of the
Shares.
(d) At Closing Time, the Underwriter shall have received certificates,
dated as of Closing Time, (i) of the Fund signed by the President or Treasurer
of the Fund to the effect that the representations and warranties of the Fund
contained in Section l(a) are true and correct with the same force and effect as
though expressly made at and as of Closing Time and (ii) of the Adviser signed
by the President, a Managing Director or a Vice President of the Adviser to the
effect that the representations and warranties of the Adviser contained in
Sections l(a) and (b) are true and correct with the same force and effect as
though expressly made at and as of Closing Time.
(e) At the time of execution of this Agreement, the Underwriter shall
have received from Coopers & Xxxxxxx L.L.P., a letter, dated the date hereof, in
form and substance satisfactory to the Underwriter, to the effect that:
(i) they are independent accountants with respect to the Fund
within the meaning of the 1933 Act and the Rules and Regulations;
(ii) in their opinion, the financial statements examined by them
and included in the Registration Statement complies as to form in all
material respects with the applicable accounting requirements of the
1933 Act and 1940 Act and the Rules and Regulations;
(iii) they have performed specified procedures, not constituting an
audit, including a reading of the latest available interim financial
statements of the Fund, a reading of the minute books of the Fund,
inquiries of officials of the Fund responsible for financial accounting
matters and such other inquiries and procedures as may be specified in
such letter, and on the basis of such inquiries and procedures nothing
came to their attention that caused
18.
them to believe that during the period from April 30, 1997 to a
specified date not more than three days prior to the date of this
Agreement, there was any change in the shares of beneficial interest of
the Fund or any increase in the long-term debt of the Fund, as compared
with amounts shown on the unaudited financial statements included in
the Registration Statement, except for changes which the Registration
Statement discloses have occurred or may occur; and
(iv) in addition to the procedures referred to in clause (iii)
above, they have performed other specified procedures, not constituting
an audit, with respect to certain amounts, percentages, numerical data,
financial information and financial statements appearing in the
Registration Statement, which have previously been specified by you and
which shall be specified in such letter, and have compared certain of
such items with, and have found such items to be in agreement with, the
accounting and financial records of the Fund.
(f) At Closing Time, the Underwriter shall have received from Coopers &
Xxxxxxx L.L.P. a letter, dated as of Closing Time, 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 days prior to Closing Time.
(g) At Closing Time, counsel for the Underwriter 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 and to pass upon related proceedings, 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 Fund and the Adviser in connection with the organization and
registration of the Fund under the 1940 Act and the issuance and sale of the
Shares as herein contemplated shall be satisfactory in form and substance to the
Underwriter and counsel for the Underwriter.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriter by notice to the Fund at any time at or prior to Closing
Time, and such termination shall be without liability of any party to any other
party except as provided in Section 5 and except that Sections 7 and 8 hereof
shall survive any such termination and remain in full force and effect.
SECTION 7. Indemnification. (a) The Fund and the Adviser,
jointly and severally, agree to indemnify and hold harmless the
19.
Underwriter and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto) including the information deemed
to be a part of the Registration Statement pursuant to Rule 430A or
Rule 434 of the Rules and Regulations, if applicable, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, provided that (subject to
Section 7(d) below) any such settlement is effected with the written
consent of the Fund and the Adviser; and
(iii) against any and all expenses whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Underwriter), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Fund by the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), including the information deemed to be part of the Registration
Statement pursuant to Rule 430A or Rule 434 of the Rules and Regulations, or any
preliminary prospectus or the
20.
Prospectus (or any amendment or supplement thereto) and provided further, the
foregoing indemnification with respect to any preliminary prospectus shall not
inure to the benefit of the Underwriter if the person asserting any such losses,
claims, damages or liabilities purchased Shares (or to the benefit of any person
controlling such Underwriter) if a copy of the Prospectus (as then amended or
supplemented if the Fund shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of the Underwriter to such
person, if such is required by law, at or prior to the written confirmation of
the sales of such Shares to such person and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability.
(b) The Underwriter agrees to indemnify and hold harmless the Fund and
the Adviser, their respective trustees or directors, as the case may be, each of
the Fund's officers who signed the Registration Statement, and each person, if
any, who controls the Fund or the Adviser within the meaning of Section 15 of
the 1933 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the information deemed to be part of the Registration Statement
pursuant to Rule 430A or Rule 434 of the Rules and Regulations, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Fund by the Underwriter expressly for use in the Registration Statement
(or any amendment thereto) or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practical to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of such action; provided, however,
that counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified
21.
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 7 or Section 8 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 7(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 90 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 60 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 7(a)(ii)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be reasonable and (ii) provides written notice to the
indemnified party objecting to the unpaid balance as unreasonable, in each case
prior to the date of such settlement.
SECTION 8. Contribution. If the indemnification provided for in Section
7 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Fund and the
Adviser on the one hand and the Underwriter on the other hand from the offering
of the Shares pursuant to this Agreement or (ii) if the allocation provided by
clause (i) 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
22.
the Fund and the Adviser on the one hand and of the Underwriter on the other
hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Fund and the Adviser on the one
hand and the Underwriter on the other hand in connection with the offering of
the Shares pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Shares
pursuant to this Agreement (before deducting expenses) received by the Fund and
the total underwriting discount received by the Underwriter, in each case as set
forth on the cover of the Prospectus, or, if Rule 434 is used, the corresponding
location on the term sheet, bear to the aggregate initial public offering price
of the Shares as set forth on such cover.
The relative fault of the Fund and the Adviser on the one hand and the
Underwriter on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Fund and the Adviser or by the Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Fund, the Adviser and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 8. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 8 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, the Underwriter shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which the
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to
23.
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 8, each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as such Underwriter, and each trustee and director of the
Fund and the Adviser, respectively, each officer of the Fund who signed the
Registration Statement, and each person, if any, who controls the Fund and the
Adviser within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Fund.
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the Pricing Agreement, or contained in certificates of officers of
the Fund or the Adviser submitted pursuant hereto or thereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of the Underwriter or any controlling person, or by or on behalf of
the Fund or the Adviser or any controlling person and shall survive delivery of
the Shares to the Underwriter.
SECTION 10. Termination of Agreement. (a) The Underwriter may terminate
this Agreement, by written notice to the Fund, at any time at or prior to
Closing Time (i) if there has been, since the time of execution of this
Agreement or since 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, business affairs or business prospects of the
Fund or the Adviser, whether or not arising in the ordinary course of business,
or (ii) if there has occurred any material adverse change in the financial
markets in the United States, any outbreak of hostilities or escalation thereof
or other calamity or crisis or any change or development involving a prospective
change in national or international political, financial or economic conditions,
in each case the effect of which is such as to make it, in the judgment of the
Underwriter, impracticable to market the Shares or to enforce contracts for the
sale of Shares, or (iii) if trading in the Common Shares has been suspended or
materially limited by the Commission or if trading generally on the American
Stock Exchange or the New York Stock Exchange or in the Nasdaq National Market
has been suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by any
of said exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) if a banking moratorium has been declared by Federal, New York or
Massachusetts authorities. As used in this Section 10, the term "Prospectus"
means the Prospectus in the form first used to confirm sales of the Shares.
24.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 5 hereof, and provided further that Sections 7 and 8 shall
survive such termination and remain in full force and effect.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of written telecommunication. Notices to the
Underwriter shall be directed to Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx,
Xxxxxx & Xxxxx Incorporated, Xxxxxxx Xxxxx World Headquarters, World Financial
Center, North Tower, New York, New York 10281-1209, attention of Xxx Xxxxxxx,
Vice President; notices to the Fund or the Adviser shall be directed to each of
them at One Post Office Square, Boston, Massachusetts 02109, attention of Xx.
Xxxx X. Xxxxxx, Vice President.
SECTION 12. Parties. This Agreement and the Pricing Agreement shall
each inure to the benefit of and be binding upon the Underwriter, the Fund and
the Adviser and their respective successors. Nothing expressed or mentioned in
this Agreement or the Pricing Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers, trustees and
directors referred to in Sections 7 and 8 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or the Pricing Agreement or any provision herein or
therein contained. This Agreement and all conditions and provisions hereof and
thereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors, and said controlling persons and
officers, trustees and directors and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of Shares
from the Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Liability of Shareholders, Trustees and Officers. A copy of
the Agreement and Declaration of Trust of the Fund is on file with the Secretary
of State of The Commonwealth of Massachusetts and notice is hereby given that
this Agreement has been executed on behalf of the Fund by an officer of the Fund
as an officer and not individually and the obligations of the Fund arising out
of this Agreement are not binding upon any of the trustees, officers or
shareholders of the Fund individually but are binding only upon the assets and
property of the Fund.
SECTION 14. Governing Law and Time. This Agreement and the Pricing
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to
25.
the agreements made and to be performed in such State. Specified
times of day refer to New York City time.
If the foregoing is in accordance with your understanding of our
Agreement, please sign and return to the Fund and the Adviser a counterpart
hereof, whereupon this instrument along with all counterparts will become a
binding agreement among the Underwriter, the Fund and the Adviser and in
accordance with its terms.
Very truly yours,
XXXXXX MUNICIPAL OPPORTUNITIES TRUST
By:_________________________________
Authorized Officer
XXXXXX INVESTMENT MANAGEMENT, INC.
By:_________________________________
Authorized Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By:_______________________________________
Authorized Officer
26.
EXHIBIT A
$81,000,000
XXXXXX MUNICIPAL OPPORTUNITIES TRUST
(a Massachusetts business trust)
REMARKETED PREFERRED SHARES ["RP"(R)]
1,620 Shares Series B
1,620 Shares Series C
Liquidation Preference, $25,000 Per Share
PRICING AGREEMENT
July __, 1997
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center
North Tower
New York, New York 10281-1201
Dear Sirs and Mesdames:
Reference is made to the Purchase Agreement, dated July __, 1997 (the
"Purchase Agreement"), relating to the purchase by Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated (the "Underwriter") of 1,620
remarketed preferred shares of beneficial interest, Series B (the "Series B RP")
and 1,620 remarketed preferred shares of beneficial interest, Series C (the
"Series C RP," and with the Series B RP, the "Shares), all without par value and
with a liquidation preference of $25,000 per share plus an amount equal to
accumulated but unpaid dividends (whether or not earned or declared) of Xxxxxx
Municipal Opportunities Trust (the "Fund").
-------------------
(R) Registered trademark of Xxxxxxx Xxxxx & Co., Inc.
Pursuant to Section 2 of the Purchase Agreement, the Fund agrees with
the Underwriter as follows:
1. The initial public offering price per share for the Shares,
determined as provided in said Section 2, shall be $25,000, plus accumulated
dividends, if any, from the date of original issue.
2. The purchase price per share for the Shares to be paid by the
Underwriters shall be $______, plus accumulated dividends, if any, from the date
of original issue, being an amount equal to the initial public offering price
set forth above less $___ per share.
3. The dividend rate on the Series B RP for the initial dividend period
ending July __, 1997 will be ___% and the dividend rate on the Series C RP for
the initial dividend period ending July __, 1997 will be %.
A copy of the Agreement and Declaration of Trust of the Fund is on file
with the Secretary of State of The Commonwealth of Massachusetts and notice is
hereby given that this Agreement has been executed on behalf of the Fund by an
officer of the Fund as an officer and not individually and the obligations of
the Fund arising out of this Agreement are not binding upon any of the trustees,
officers or shareholders of the Fund individually but are binding only upon the
assets and property of the Fund.
A-2.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Fund a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriter and the Fund in accordance with its terms.
Very truly yours,
XXXXXX MUNICIPAL OPPORTUNITIES TRUST
By:_________________________________
Authorized Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By:________________________________________
Authorized Officer
A-3.
