VMTP Purchase Agreement
VMTP Purchase Agreement
Federated Premier Municipal Income Fund
as Issuer
as Issuer
and
Banc of America Preferred Funding Corporation
as a Purchaser
as a Purchaser
and
Blue Ridge Investments, L.L.C.
as a Purchaser
as a Purchaser
October 18, 2019
TABLE OF CONTENTS
SECTION HEADING PAGE
ARTICLE I DEFINITIONS
1.1 Incorporation of Certain Definitions by Reference and Interpretation
ARTICLE II PURCHASE AND TRANSFERS, COSTS AND EXPENSES; ADDITIONAL FEE
2.1 Purchase and Transfer of the 2019 VMTP Shares
2.2 Fees
2.3 Operating Expenses
2.4 Additional Fee for Failure to Comply with Reporting Requirement or Registration Rights Failure
ARTICLE III CONDITIONS TO EFFECTIVE DATE
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE ISSUER
4.1 Existence
4.2 Authorization; Contravention
4.3 Binding Effect
4.4 Financial Information
4.5 Litigation
4.6 Consents
4.7 Incorporation of Additional Representations and Warranties
4.8 Complete and Correct Information
4.9 1940 Act Registration
4.10 Effective Leverage Ratio; Asset Coverage
4.11 Credit Quality
4.12 Due Diligence
4.13 Certain Fees
4.14 Eligible Assets
4.15 Capitalization
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
5.1 Existence
5.2 Authorization; Contravention
5.3 Binding Effect
5.4 Own Account
5.5 Litigation
5.6 Consents
5.7 Purchaser Status
5.8 Certain Transactions
5.9 Certain Fees
5.10 Experience of the Purchaser
5.11 Due Diligence
5.12 Access to Information
ARTICLE VI COVENANTS OF THE ISSUER
6.1 Information
6.2 No Amendment or Certain Other Actions Without Consent of the Purchasers
6.3 Maintenance of Existence
6.4 Tax Status of the Issuer
6.5 Payment Obligations
6.6 Compliance With Law
6.7 Maintenance of Approvals: Filings, Etc.
6.8 Inspection Rights
6.9 Litigation, Etc.
6.10 1940 Act Registration
6.11 Credit Quality
6.12 Maintenance of Effective Leverage Ratio
6.13 Redemption and Paying Agent
6.14 Cooperation in the Sale of the 2019 VMTP Shares
6.15 Use of Proceeds
6.16 Securities Depository
6.17 Future Agreements
6.18 Eligible Assets
ARTICLE VII MISCELLANEOUS
7.1 Notices
7.2 No Waivers
7.3 Expenses and Indemnification
7.4 Amendments and Waivers
7.5 Successors and Assigns
7.6 Term of this Agreement
7.7 Governing Law
7.8 Waiver of Jury Trial
7.9 Counterparts
7.10 Beneficiaries
7.11 Entire Agreement
7.12 Relationship to the Statement
7.13 Confidentiality
7.14 Severability
7.15 Consent Rights of the Majority Participants to Certain Actions
SCHEDULE 1 Schedule 1-1
SCHEDULE 2 Schedule 2-1
EXHIBIT A FORMS OF OPINIONS OF COUNSEL FOR THE ISSUER A-1
EXHIBIT A-1 FORM OF CORPORATE AND 1940 ACT OPINION X-0-0
XXXXXXX X-0 FORM OF TAX OPINION X-0-0
XXXXXXX X-0 FORM OF LOCAL COUNSEL OPINION X-0-0
XXXXXXX X-0 FORM OF NEGATIVE ASSURANCE LETTER A-4-1
EXHIBIT B ELIGIBLE ASSETS B-1
EXHIBIT C TRANSFEREE CERTIFICATE C-1
EXHIBIT D INFORMATION TO BE PROVIDED BY THE ISSUER D-1
EXHIBIT E ADDITIONAL REPRESENTATIONS AND WARRANTIES E-1
EXHIBIT F CAPITALIZATION F-1
This
VMTP PURCHASE AGREEMENT dated as of October 18, 2019, (this "Agreement") is by and among:
FEDERATED PREMIER
MUNICIPAL INCOME FUND, a closed-end management investment company registered with the Securities and Exchange Commission that is organized as a Delaware statutory trust, as issuer (the "Fund" or the "Issuer"),
BANC OF AMERICA
PREFERRED FUNDING CORPORATION, a Delaware corporation, including its successors by merger or operation of law ("BAPFC"), as a purchaser
of the 2019 VMTP Shares (as defined below) pursuant to this Agreement, and
BLUE RIDGE INVESTMENTS,
L.L.C., a Delaware limited liability company, including its successors by merger or operation of law ("Blue Ridge"), as a Purchaser of
the 2019 VMTP Shares (as defined below) pursuant to this Agreement (each of BAPFC and Blue Ridge, a "Purchaser" and together the "Purchasers").
WHEREAS,
the Fund has authorized the issuance pursuant to the Statement (as defined below) to the Purchasers of the Variable Rate Municipal Term Preferred Shares, Series 2019 issued by the Fund, as set forth on Schedule 1 hereto, which are subject to this Agreement (the "2019 VMTP Shares");
WHEREAS,
as an inducement to the Purchasers to purchase the 2019 VMTP Shares, the Issuer now desires to enter into this Agreement to set forth certain representations, warranties, covenants and agreements regarding the Issuer and the 2019 VMTP Shares; and
WHEREAS,
as an inducement to the Issuer to issue and sell the 2019 VMTP Shares, the Purchasers desire to enter into this Agreement to set forth certain representations, warranties, covenants and agreements regarding the Purchasers and the 2019 VMTP Shares.
NOW,
THEREFORE, in consideration of the respective agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
The following terms, as used herein, have the following meanings:
"1940
Act" means the Investment Company Act of 1940, as amended.
"2019
VMTP Shares" has the meaning set forth in the preamble to this Agreement.
"Additional
Amount Payment" has the meaning set forth in the Statement.
"Agreement"
means this VMTP Purchase Agreement, dated as of October 18, 2019, as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof.
"Applicable
Sections" has the meaning set forth in Section 2.1(c) of this Agreement.
"APS"
means the Issuer's outstanding Auction Market Preferred Shares.
"Asset
Coverage" has the meaning set forth in the Statement.
"Banks"
has the meaning set forth in Section 2.1(b) of this Agreement.
"Board
of Trustees" has the meaning set forth in the Statement.
"Business
Day" has the meaning set forth in the Statement.
"Bylaws"
has the meaning set forth in the Statement.
"Code"
has the meaning set forth in the Statement.
"Common
Shares" has the meaning set forth in the Statement.
"Custodian"
has the meaning set forth in the Statement.
"Date
of Original Issue", with respect to the 2019 VMTP Shares, means the date on which the Issuer initially issued such 2019 VMTP Shares.
"Declaration"
has the meaning set forth in the Statement.
"Deposit
Securities" has the meaning set forth in the Statement.
"Derivative
Contract" means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond
or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, repurchase transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the
foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement, including any such obligations or liabilities under any such master
agreement.
"Designated
Owner" has the meaning set forth in the Statement.
"Dividend
Payment Date" has the meaning set forth in the Statement.
"Dividend
Rate" has the meaning set forth in the Statement.
"Due
Diligence Request" means the due diligence request letter from Xxxxxxx and Xxxxxx LLP, counsel to the Purchasers, dated August 30, 2019.
"Effective
Date" means the Date of Original Issue of the 2019 VMTP Shares subject to the satisfaction or waiver of the conditions specified in Section 3 of this Agreement.
"Effective
Leverage Ratio" has the meaning set forth in the Statement.
"Electronic
Means" has the meaning set forth in the Statement.
"Eligible
Assets" means the instruments in which the Issuer may invest as described in Exhibit B to this Agreement, which may be amended from time to time
with the prior written consent of the Purchasers.
"Failure"
has the meaning set forth in Section 2.4 of this Agreement.
"Federated
Persons" means the Investment Adviser or any affiliated person (as defined in Section 2(a)(3) of the 0000 Xxx) of the Investment Adviser (other than the Issuer, in the case of a redemption or purchase of the 2019 VMTP Shares which are to
be cancelled within ten (10) days of purchase by the Issuer).
"Fee
Rate" means initially 0.10% per annum, which shall be subject to increase by 0.10% per annum for each Week in respect of which any Failure has occurred and is continuing.
"Fitch"
means Fitch Ratings, a part of the Fitch Group, or any successor or successors thereto.
"Fitch
Guidelines" means the guidelines, as may be amended from time to time, in connection with Fitch's ratings of the 2019 VMTP Shares.
"Force Majeure Exception"
means any failure or delay in the performance of the Issuer's reporting obligation pursuant to Section 2.4 of this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including acts of God;
earthquakes; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; loss or malfunctions of utilities, computer (hardware or software) or communication services; accidents; acts of civil or military authority and
governmental action. The Issuer shall use commercially reasonable efforts to commence performance of its obligations during any of the foregoing circumstances.
"Holder"
has the meaning set forth in the Statement.
The word "including" means "including without limitation."
"Indemnified
Persons" means, each Purchaser and its affiliates and directors, officers, partners, employees, and control persons, entitled to indemnification by the Issuer under Section 7.3 of this Agreement.
"Investment
Adviser" means Federated Investment Management Company, or any successor company or entity.
"Issuer"
has the meaning set forth in the preamble to this Agreement.
"Liquidation
Preference", with respect to a given number of 2019 VMTP Shares, means $50,000 times that number.
"Majority
Participants" means the Holder(s) of more than 50% of the Outstanding 2019 VMTP Shares.
"Market
Value" has the meaning set forth in the Statement.
"Material
Adverse Effect" means a material adverse effect upon (i) the ability of the Issuer to perform its obligations under this Agreement or (ii) the source for payment of the Liquidation Preference of, or dividends on, the 2019 VMTP Shares.
"Municipal
Securities" has the meaning set forth in the Statement.
"NRSRO"
has the meaning set forth in the Statement.
"Optional
Redemption Premium" has the meaning set forth in the Statement.
The word "or" is used in its inclusive sense.
"Other
Rating Agency" means, at any time, each NRSRO, if any, other than Fitch then providing a rating for the 2019 VMTP Shares pursuant to the
request of the Issuer.
"Other
Rating Agency Guidelines" means the guidelines provided by each Other Rating Agency, as may be amended from time to time, in connection with the Other Rating Agency's rating of the 2019 VMTP Shares.
"Outstanding"
has the meaning set forth in the Statement.
"Person"
has the meaning set forth in the Statement.
"Preferred
Shares" has the meaning set forth in the Statement.
"Pricing
Procedures" has the meaning set forth in the Statement.
"Purchase
Price" means, in respect of the 2,272 2019 VMTP Shares sold to the Purchasers, U.S. $113,600,000.
"Purchaser"
and "Purchasers" have the meaning set forth in the preamble to this Agreement.
"QIB"
means a "qualified institutional buyer" as defined in Rule 144A(a) under the Securities Act.
"Rate
Period" has the meaning set forth in the Statement.
"Rating
Agency" means each of Fitch (if Fitch is then rating 2019 VMTP Shares at the request of the Issuer), and any Other Rating Agency (if such Other Rating Agency is then rating 2019 VMTP Shares at the request of the Issuer).
"Rating
Agency Guidelines" means the Fitch Guidelines and any Other Rating Agency Guidelines as they exist from time to time.
"Redemption
and Paying Agent" means Computershare Trust Company, N.A. and Computershare Inc., or with the prior written consent of the Purchasers (which consent shall not be unreasonably withheld, delayed or conditioned), any successor Person, which
has entered into an agreement with the Issuer to act in such capacity as the Issuer's tender agent, transfer agent, registrar, dividend disbursing agent, paying agent and redemption price disbursing agent and calculation agent in connection with
the payment of regularly scheduled dividends with respect to 2019 VMTP Shares.
"Registered
Investment Company" has the meaning set forth in Section 2.1(b) of this Agreement.
"Registration
Rights Agreement" means the registration rights agreement, dated as of October 18, 2019, entered into among the Issuer and the Purchasers with respect to the 2019 VMTP Shares.
"Registration
Rights Failure" means any (i) failure by the Issuer to file a Registration Statement (as defined in the Registration Rights Agreement) with the Securities and Exchange Commission relating to such of the Registrable Securities (as defined
in the Registration Rights Agreement, but excluding any that are properly excluded pursuant to Section 3.3(c) or (d) of the Registration Rights Agreement) which the Issuer has been properly requested to register under Section 3.1 of the
Registration Rights Agreement within thirty (30) calendar days (or, if the thirtieth (30th) calendar day shall not be a Business Day, the next succeeding Business Day) of the later of (a) the date on which the holders of such Registrable Securities
are required to give written notice to the Issuer of their intent to register such Registrable Securities pursuant to Section 3.1 of the Registration Rights Agreement or (b) if properly exercised by the Issuer, the end of any deferral period
specified in accordance with the provisions of Section 3.2 of the Registration Rights Agreement, or (ii) failure by the Issuer to reply to any written comments on such Registration Statement received by the Issuer from the staff of the Securities
and Exchange Commission (it being understood that the reply referenced herein shall not require the Issuer to accept or agree with any comment, in whole or in part) within thirty (30) calendar days (or, if the thirtieth (30th) calendar day shall
not be a Business Day, the next succeeding Business Day) of receipt thereof by the Issuer.
"Related
Documents" means this Agreement, the Declaration, the Statement, the Registration Rights Agreement, any certificate evidencing the 2019 VMTP Shares and the Bylaws.
"Reporting
Date" has the meaning set forth in Section 6.1(o) of this Agreement.
"Reporting
Failure" has the meaning set forth in Section 2.4 of this Agreement.
"Securities
Act" means the Securities Act of 1933, as amended, and the rules and regulations thereunder.
"Securities
Depository" means The Depository Trust Company, New York, New York, and any substitute for or successor to such securities depository that shall maintain a book-entry system with respect to the 2019 VMTP Shares.
"Statement"
means the Statement Establishing and Fixing the Rights and Preferences of Variable Rate Municipal Term Preferred Shares, as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof
and hereof.
"Week"
means a period of seven (7) consecutive calendar days.
"written"
or "in writing" means any form of written communication, including communication by means of facsimile, telex, telecopier or electronic mail.
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1.1
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Incorporation of Certain Definitions by Reference and Interpretation
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Each capitalized term used herein and not otherwise defined herein shall have the meaning provided
therefor (including by incorporation by reference) in the other Related Documents.
ARTICLE II
PURCHASE AND TRANSFERS, COSTS AND EXPENSES; ADDITIONAL FEE
PURCHASE AND TRANSFERS, COSTS AND EXPENSES; ADDITIONAL FEE
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2.1
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Purchase and Transfer of the 2019 VMTP Shares
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(a)
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On the Effective Date, BAPFC will acquire 1,809 2019 VMTP Shares and Blue Ridge will acquire 463 2019 VMTP
Shares sold on initial issuance in a transaction (which, based upon the representations of the Issuer and the Purchasers herein, is exempt from registration under the Securities Act) by payment of the Purchase Price in the following
amounts in immediately available funds to the Issuer through the account of its agent at the Securities Depository: $90,450,000 to be paid by BAPFC and $23,150,000 to be paid by Blue Ridge.
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(b)
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Each Purchaser agrees that it may offer, sell, transfer or otherwise dispose of the 2019 VMTP Shares in
compliance with the Securities Act and applicable state securities laws only in whole shares and only (i)(1) to Persons that it reasonably believes are QIBs that are: (a) registered closed-end management investment companies, the shares
of which are traded on a national securities exchange and registered open-end management investment companies, in each case, that (X) are either sponsored or managed by an entity listed on Schedule 2 of this Purchase Agreement or any
other entity that is controlled by, controlling or under common control with an entity listed on Schedule 2 of this Purchase Agreement and (Y) invest primarily in municipal obligations (each, a "Registered Investment Company"); (b) banks or entities that are 100% direct or indirect subsidiaries of banks' publicly traded parent holding companies (collectively, "Banks"); or (c) insurance companies, in each case, pursuant to Rule 144A or another available exemption from registration under the
Securities Act, in a manner not involving any public offering within the meaning of Section 4(a)(2) of the Securities Act, (2) to tender option bond trusts (or similar vehicles used for providing financing for municipal obligations and
municipal closed-end fund preferred shares) in which all investors are Persons that such Purchaser reasonably believes are QIBs that are Registered Investment Companies, Banks or insurance companies (or, in the case of a tender option
bond trust (or similar vehicles used for providing financing for municipal obligations and municipal closed-end fund preferred shares) in which the Holder or an affiliate of the Holder retains a residual interest), or (3) to other
investors with the prior written consent of the Issuer and (ii) unless the prior written consent of each of the Issuer and the Majority Participants has been obtained, not to Federated Persons if such Federated Persons would, after such
sale and transfer, own more than 20% of the Outstanding 2019 VMTP Shares. Any transfer in violation of the foregoing restrictions shall be void ab initio. In the event that the Purchaser intends to transfer the VMTP Shares to a Person other than an affiliate or a tender option bond trust (or similar vehicles used for providing financing for municipal obligations
and municipal closed-end fund preferred shares), the Purchaser shall provide written notice to the Fund, which notice shall be signed by the Purchaser, indicating the Purchaser’s intent to transfer the VMTP Shares and the name of the
intended transferee at least three (3) Business Days in advance of the transfer; provided, that any failure to deliver such advance notice shall not void any such transfer. In connection with any transfer of the 2019 VMTP Shares, each
transferee (including, in the case of a tender option bond trust (or similar vehicles used for providing financing for municipal obligations and municipal closed-end fund preferred shares), the depositor or trustee or other Person
thereunder acting on behalf of such transferee) will be required to deliver to the Issuer a transferee certificate set forth as Exhibit C to this
Agreement no later than the date of the transfer. The foregoing restrictions on transfer shall not apply to any 2019 VMTP Shares registered under the Securities Act pursuant to the Registration Rights Agreement or any subsequent transfer
of such registered 2019 VMTP Shares thereafter.
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(c)
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In the event that a Purchaser transfers, in accordance with Section 2.1(b) of this Agreement, 2019 VMTP Shares
to a tender option bond trust (or similar vehicles used for providing financing for municipal obligations and municipal closed-end fund preferred shares) in which such Purchaser retains a residual interest, for so long as no event has
occurred that results in the termination of such tender option bond trust (or similar vehicles used for providing financing for municipal obligations and municipal closed-end fund preferred shares), for purposes of each of the Applicable
Sections (as defined below) that requires, permits or provides for (i) notice or the delivery of information to or (ii) voting of the 2019 VMTP Shares or the giving of any consent by or (iii) payment of fees, in each case, to such
Purchaser or the Majority Participants, such Purchaser, and not such tender option bond trust (or similar vehicles used for providing financing for municipal obligations and municipal closed-end fund preferred shares), shall be deemed to
be the actual owner of such 2019 VMTP Shares. For the avoidance of doubt, the deemed ownership provided for in this Section 2.1(c) shall be limited to the following sections of this Agreement: 2.1(b), 2.4, 6.1, 6.2, 6.8, 6.9, 6.12,
6.14, 6.17, 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.8, 7.10, 7.12 and 7.15 (collectively, the "Applicable Sections"). The deemed ownership
provided for in this Section 2.1(c) shall last until the earliest of (A) the termination of such tender option bond trust (or similar vehicles used for providing financing for municipal obligations and municipal closed-end fund preferred
shares); (B) the agreement by the Issuer and such Purchaser to terminate such deemed ownership; and (C) with respect to some or all of the Applicable Sections, the good-faith determination by such Purchaser that such deemed ownership has
adverse tax, legal or other regulatory consequences or is otherwise no longer consistent with applicable law.
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(d)
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Anything herein to the contrary notwithstanding, except with respect to the deemed ownership provided for
above in respect of the Applicable Sections, the tender option bond trust (or similar vehicles used for providing financing for municipal obligations and municipal closed-end fund preferred shares) to which 2019 VMTP Shares are
transferred and each of the beneficial owners thereof shall retain all of its other rights in respect of the Issuer and the 2019 VMTP Shares pursuant to this Agreement and the Statement or under law, including, for the avoidance of doubt,
its rights under any of the Applicable Sections to the extent necessary for the protection or exercise of such other rights retained pursuant to this Section 2.1(d) of this Agreement or that are otherwise applicable as a result of the
exercise of such other rights.
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2.2
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Fees
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| (a) |
Within thirty (30) days of invoicing, the Issuer shall pay the reasonable fees and expenses of the Purchasers' single outside counsel in connection with (i)
the negotiation and documentation of the transactions contemplated by this Agreement and (ii) the initial organization and set up of a voting trust to be formed with respect to the 2019 VMTP Shares.
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| (b) |
The Issuer shall pay up to $10,500 of the fees and expenses incurred by the Purchasers in connection with the initial organization and set up of the voting
trust to be formed with respect of the 2019 VMTP Shares.
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| (c) |
With respect to the fees and expenses described in subsection (b) of this Section 2.2, the Issuer will pay such fees and expenses within thirty (30) days of
receipt of the associated invoice. For avoidance of doubt, the Issuer's responsibilities with respect to the fees and expenses described in subsections (a)(ii) and (b) are exclusive of each other.
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2.3
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Operating Expenses
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The Issuer shall pay amounts due to be paid by it hereunder (including any incidental expenses but
not including redemption or dividend payments on the 2019 VMTP Shares) as operating expenses.
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2.4
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Additional Fee for Failure to Comply with Reporting Requirement or Registration Rights Failure
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(a)
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For so long as either Purchaser is a Holder or Designated Owner of any Outstanding 2019 VMTP Shares, if the
Issuer fails to comply with the reporting requirements set forth in Sections 6.1(o) and 6.1(p) of this Agreement (except as a result of a Force
Majeure Exception) and such failure is not cured within seven (7) Business Days after written notification to the Issuer by either Purchaser of such failure (a "Reporting Failure") or a Registration Rights Failure occurs, and such failure is not cured within seven (7) Business Days after written notification to the Issuer by either Purchaser of such failure,
the Issuer shall pay to each Purchaser on the Dividend Payment Date occurring in the month immediately following a month in which either such Reporting Failure or Registration Failure (either, a "Failure") continues a fee, calculated in respect of each Week (or portion thereof) during such month in respect of a Failure and beginning on the date of such Failure, equal to
the product of (i) the Fee Rate, times (ii) the aggregate average daily Liquidation Preference of the 2019 VMTP Shares held by such Purchaser during such Week or portion thereof, times (iii) the quotient of the number of days in such Week
or portion thereof divided by the number of calendar days in the year in which such Week or portion thereof occurs. If such fee is an "other
distribution" pursuant to the Statement, such fee shall be paid pursuant to and in accordance with the Statement, including Section 2.2(c) of the Statement. Notwithstanding the foregoing, in no event shall (i) the fee payable
pursuant to this Section 2.4 hereunder for any Week plus the Applicable Spread on the 2019 VMTP Shares for such Week exceed an amount (exclusive of any Additional Amount Payment) equal to the product of (x) 15%, times (y) the aggregate
average daily Liquidation Preference of the 2019 VMTP Shares held by such Purchaser during such Week or portion thereof, times (z) the quotient of the number of days in such Week or portion thereof divided by the number of calendar days
in the year in which such Week or portion thereof occurs; (ii) the fee payable pursuant to this Section 2.4 for any Week plus the amount of dividends payable at the Dividend Rate for the 2019 VMTP Shares for such Week exceed an amount
equal to the product of (aa) 15%, times (bb) the aggregate average daily Liquidation Preference of the 2019 VMTP Shares held by such Purchaser during such Week or portion thereof, times (cc) the quotient of the number of days in such Week
or portion thereof divided by the number of calendar days in the year in which such Week or portion thereof occurs; or (iii) the Issuer be required to calculate or pay a fee in respect of more than one Failure in any Week.
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(b)
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Notwithstanding the foregoing, in no event shall (i) the fee payable pursuant to this Section 2.4 for any day
plus the Dividend Rate for the 2019 VMTP Shares for such day exceed 15%, (ii) the Issuer be required to calculate and pay a fee, in respect of more than one Reporting Failure in any week, or (iii) the fee payable pursuant to this Section
2.4 be payable with respect to any portion of a Week in which such Failure is not continuing.
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ARTICLE III
CONDITIONS TO EFFECTIVE DATE
CONDITIONS TO EFFECTIVE DATE
It shall be a condition to the Effective Date that each of the following conditions shall have been
satisfied or waived as of or on such date, and upon such satisfaction or waiver, this Agreement shall be effective:
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(a)
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this Agreement shall have been duly executed and delivered by the parties hereto;
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(b)
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the 2019 VMTP Shares shall have a long-term issue credit rating of at least AA+ (or its equivalent) from at
least one NRSRO, expected to be Fitch, on the Effective Date;
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(c)
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receipt by each Purchaser of executed originals, or copies certified by a duly authorized officer of the
Issuer to be in full force and effect and not otherwise amended, of all Related Documents, as in effect on the Effective Date, and an incumbency certificate with respect to the authorized signatories thereto;
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(d)
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receipt by each Purchaser of opinions of counsel for the Issuer, substantially to the effect of Exhibit A;
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(e)
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except as otherwise disclosed to each Purchaser, there shall not be any pending or overtly threatened material
litigation against the Issuer (unless such pending or threatened litigation has been determined by the Purchasers to be acceptable);
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(f)
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the fees and expenses and all other amounts payable on the Effective Date pursuant to Section 2.2 hereof shall
have been paid;
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(g)
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each Purchaser, in its reasonable discretion, shall be satisfied that no change in law, rule or regulation (or
their interpretation or administration), in each case, shall have occurred which will adversely affect the consummation of the transaction contemplated by this Agreement;
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(h)
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there shall have been delivered to each Purchaser any additional documentation and financial information,
including satisfactory responses to its due diligence inquiries, as it deems relevant; and
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(i)
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there shall have been delivered to each Purchaser such information and copies of documents, approvals (if any)
and records certified, where appropriate, of corporate proceedings as each Purchaser may have requested relating to the Issuer's entering into and performing this Agreement and the other Related Documents to which the Issuer is a party,
and the transactions contemplated hereby and thereby.
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The Issuer and each Purchaser agree that consummation of the purchase and sale of the 2019 VMTP
Shares pursuant to this Agreement shall constitute acknowledgment that the foregoing conditions have been satisfied or waived.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
The representations and warranties set out in this Article IV are given hereunder by the Issuer to
each of the Purchasers as of the Effective Date.
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4.1
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Existence
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The Issuer is validly existing and in good standing as a statutory trust under the laws of the State
of Delaware, with full right and power to issue the 2019 VMTP Shares and to execute, deliver and perform its obligations under this Agreement and each other Related Document, except where the failure to have such right and power would not
reasonably be expected to give rise to a Material Adverse Effect.
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4.2
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Authorization; Contravention
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The execution, delivery and performance by the Issuer of this Agreement and each other Related
Document are within the Issuer's powers, have been duly authorized by all necessary action, require no action by or in respect of, or filing with, any governmental body, agency or official except such as have been taken or made and do not violate
or contravene, or constitute a default under, any provision of applicable law, Declaration, ordinance or regulation or of any material agreement, judgment, injunction, order, decree or other instrument binding upon the Issuer or cause the creation
or imposition of any lien or encumbrance on any asset of the Issuer.
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4.3
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Binding Effect
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Each of this Agreement and the Registration Rights Agreement constitutes a valid and binding
agreement of the Issuer, enforceable in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) the availability of equitable
remedies may be limited by equitable or public policy principles of general applicability, it being understood that the enforceability of indemnification provisions may be subject to limitations imposed under applicable securities laws. The 2019
VMTP Shares have been duly authorized and, when issued upon payment therefor by the Purchasers as contemplated by this Agreement, will be validly issued by the Issuer and fully paid and nonassessable.
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4.4
|
Financial Information
|
The most recent publicly available financial statements of the Issuer, and the auditors' report with
respect thereto, copies of which have heretofore been furnished to each Purchaser, fairly present in all material respects the financial condition of the Issuer, at such date and for such period, and were prepared in accordance with accounting
principles generally accepted in the United States, consistently applied (except as required or permitted and disclosed). Since the date of such financial statements, there has been no material adverse change in the condition (financial or
otherwise) or operations of the Issuer that would reasonably be expected to have a Material Adverse Effect, except as otherwise disclosed to each Purchaser, other than changes in the general economy or changes affecting the market for municipal
securities or investment companies generally. Any financial, budget and other projections furnished to each Purchaser were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair and reasonable in light of
conditions existing at the time of delivery of such financial, budget or other projections.
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4.5
|
Litigation
|
Except as otherwise disclosed to each Purchaser or in a schedule delivered to each Purchaser prior to
the Effective Date, no action, suit, proceeding or investigation is pending or (to the knowledge of the Issuer) overtly threatened in writing against the Issuer in any court or before any governmental authority which would reasonably be expected to
have a Material Adverse Effect.
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4.6
|
Consents
|
All consents, licenses, approvals, validations and authorizations of, and registrations, validations
or declarations by or with, any court or any governmental agency, bureau or agency required to be obtained by the Issuer in connection with the execution, delivery, performance, validity or enforceability of this Agreement and the other Related
Documents by or against the Issuer have been obtained and are in full force and effect, except to the extent that the failure to make or obtain the same would not reasonably be expected to give rise to a Material Adverse Effect.
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4.7
|
Incorporation of Additional Representations and Warranties
|
As of the Effective Date, the Issuer hereby makes to each of the Purchasers the representations and
warranties included in Exhibit E hereto, which representations and warranties are hereby incorporated by reference herein.
|
4.8
|
Complete and Correct Information
|
All information, reports and other papers and data with respect to the Issuer furnished to each
Purchaser by the Issuer (other than financial information, financial statements, budgets and projections, which are covered solely by Section 4.4 of this Agreement) were, at the time the same were so furnished, complete and correct in all material
respects. No fact is known to the Issuer that materially and adversely affects or in the future may (so far as it can reasonably foresee) materially and adversely affect the 2019 VMTP Shares, or the Issuer's ability to repay when due its
obligations under this Agreement, any of the 2019 VMTP Shares and the other Related Documents that has not been set forth in the financial information and other documents referred to in Section 4.4 or this Section 4.8 of this Agreement or in such
information, reports, papers and data otherwise made available or disclosed in writing to each Purchaser. Taken as a whole, the documents furnished and statements made by the Issuer in connection with the negotiation, preparation or execution of
this Agreement and the other Related Documents do not contain untrue statements of material facts or omit to state material facts necessary to make the statements contained therein, in light of the circumstances under which they were made, not
misleading.
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4.9
|
1940 Act Registration
|
The Issuer is duly registered as a closed-end management investment company under the 1940 Act and
such registration is in full force and effect.
|
4.10
|
Effective Leverage Ratio; Asset Coverage
|
As of the Effective Date, the Issuer is in compliance with the Effective Leverage Ratio and the Asset
Coverage as required by Section 2.4 of the Statement.
In connection with calculating the Effective Leverage Ratio, the Issuer's total assets and accrued
liabilities reflect the positive or negative net obligations of the Issuer under each Derivative Contract determined in accordance with the Issuer's valuation policies.
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4.11
|
Credit Quality
|
As of the Effective Date, the Issuer (i) has invested at least 80% of its Fund Assets in investment
grade quality Municipal Securities that, at the time of investment, were rated within the four highest grades (Baa or BBB or better) by at least one of the NRSROs rating such securities or were unrated but judged to be of comparable credit quality
by the Investment Adviser; and (ii) has invested no more than 20% of its Fund Assets in Municipal Securities that at the time of investment were rated below investment grade or were unrated but judged to be of comparable credit quality by the
Investment Adviser, provided that the Issuer has invested no more than 10% of the Issuer's Fund Assets in Municipal Securities that, at the time of investment, were rated below B3/B- by an NRSRO or that were unrated but judged to be of comparable
credit quality by the Investment Adviser.
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4.12
|
Due Diligence
|
The Issuer understands that nothing in this Agreement or any other materials presented to the Issuer
in connection with the purchase and sale of the 2019 VMTP Shares constitutes legal, tax or investment advice from either of the Purchasers. The Issuer has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed
necessary or appropriate in connection with its sale of the 2019 VMTP Shares.
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4.13
|
Certain Fees
|
The Issuer acknowledges that, other than the fees and expenses payable pursuant to this Agreement, no
brokerage or finder's fees or commissions are or will be payable by the Issuer or, to the Issuer's knowledge, by either Purchaser to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with
respect to the transactions contemplated by this Agreement.
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4.14
|
Eligible Assets
|
As of the Effective Date, the Issuer owns only Eligible Assets, as described in Exhibit B to this Agreement.
|
4.15
|
Capitalization
|
The Preferred Shares capitalization of the Fund as of the date of this Agreement after giving effect
to the transactions contemplated by this Agreement is set forth in Exhibit F hereto.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser severally represents and warrants with respect to itself, as of the date hereof and as of the Effective
Date to the Issuer as follows:
|
5.1
|
Existence
|
The Purchaser is validly existing and in good standing as (a) with respect to BAPFC, a corporation
under the laws of the State of Delaware and (b) with respect to Blue Ridge, a limited liability company under the laws of the State of Delaware, and the Purchaser has full right and power to purchase the 2019 VMTP Shares and to execute, deliver and
perform its obligations under this Agreement and each other Related Document to which it is a party, except where the failure to have such right and power would not reasonably be expected to give rise to a Material Adverse Effect.
|
5.2
|
Authorization; Contravention
|
The execution, delivery and performance by the Purchaser of this Agreement and each other Related
Document to which it is a party are within the Purchaser's powers, have been duly authorized by all necessary action, require no action by or in respect of, or filing with, any governmental body, agency or official except such as have been taken or
made, and do not violate or contravene, or constitute a default under, any provision of applicable law, Declaration, ordinance or regulation or of any material agreement, judgment, injunction, order, decree or other instrument, in each case
applicable to or binding upon the Purchaser.
|
5.3
|
Binding Effect
|
Each of this Agreement and the Registration Rights Agreement constitutes a valid and binding
agreement of the Purchaser, enforceable in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) the availability of equitable
remedies may be limited by equitable or public policy principles of general applicability, it being understood that the enforceability of indemnification provisions may be subject to limitations imposed under applicable securities laws.
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5.4
|
Own Account
|
The Purchaser understands that the 2019 VMTP Shares are "restricted securities" as defined in Rule
144 promulgated under the Securities Act and have not been registered under the Securities Act or any applicable state securities laws and are subject to restrictions on the sale and transferability applicable to restricted securities. The
Purchaser is acquiring the 2019 VMTP Shares as principal for its own account and not with a view to or for the purpose of distributing or reselling such securities or any part thereof in violation of the Securities Act or any applicable state
securities law, has no present intention of distributing any of such 2019 VMTP Shares in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other persons to
distribute or regarding the distribution of such 2019 VMTP Shares in violation of the Securities Act or any applicable state securities law (this representation and warranty not limiting the Purchaser's right to register the 2019 VMTP Shares under
the Securities Act pursuant to the Registration Rights Agreement or otherwise transfer the 2019 VMTP Shares in compliance with the transfer limitations of this Agreement in compliance with applicable federal and state securities laws).
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5.5
|
Litigation
|
Except as disclosed in a schedule delivered to the Issuer prior to the Effective Date, no action,
suit, proceeding or investigation is pending or (to the knowledge of the Purchaser) overtly threatened in writing against the Purchaser in any court or before any governmental authority in any way contesting or, if decided adversely, would affect
the validity of this Agreement.
|
5.6
|
Consents
|
All consents, licenses, approvals, validations and authorizations of, and registrations, validations
or declarations by or with, any court or any governmental agency, bureau or agency required to be obtained by the Purchaser in connection with the execution, delivery, performance, validity or enforceability of this Agreement by or against the
Purchaser and the purchase of the 2019 VMTP Shares have been obtained and are in full force and effect, except to the extent that the failure to make or obtain the same would not reasonably be expected to give rise to a Material Adverse Effect.
|
5.7
|
Purchaser Status
|
At the time the Purchaser was offered the 2019 VMTP Shares, it was, and as of the Effective Date it
is: (i) an "accredited investor" as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act and (ii) a QIB.
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5.8
|
Certain Transactions
|
Other than consummating the transactions contemplated by this Agreement, the Purchaser has not
directly or indirectly executed, nor has any Person acting on behalf of the Purchaser, or pursuant to any understanding with the Purchaser executed, any other purchases of securities of the Issuer which may be integrated with the transactions
contemplated by this Agreement.
|
5.9
|
Certain Fees
|
The Purchaser acknowledges that, other than the fees and expenses payable pursuant to this Agreement,
no brokerage or finder's fees or commissions are or will be payable by the Purchaser or, to the Purchaser's knowledge, by the Issuer to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person
with respect to the transactions contemplated by this Agreement.
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5.10
|
Experience of the Purchaser
|
The Purchaser has such knowledge, sophistication and experience in business and financial matters so
as to be capable of evaluating the merits and risks of the prospective investment in the 2019 VMTP Shares, and has so evaluated the merits and risks of such investment. The Purchaser is able to bear the economic risk of an investment in the 2019
VMTP Shares and, at the present time, is able to afford a complete loss of such investment.
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5.11
|
Due Diligence
|
The Purchaser acknowledges that it has sole responsibility for its own due diligence investigation
and its own investment decision relating to the 2019 VMTP Shares. The Purchaser understands that nothing in this Agreement or any other materials presented to the Purchaser in connection with the purchase and sale of the 2019 VMTP Shares
constitutes legal, tax or investment advice from the Issuer. The Purchaser has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the 2019 VMTP
Shares.
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5.12
|
Access to Information
|
The Purchaser acknowledges that it has had access to and has reviewed all information, documents and
records that Purchaser has deemed necessary in order to make an informed investment with respect to its investment in the 2019 VMTP Shares. The Purchaser has had the opportunity to ask representatives of the Issuer certain questions and request
certain additional information regarding the terms and conditions of such investment and the finances, operations, business and prospects of the Issuer and has had any and all such questions and requests answered to the Purchaser’s satisfaction;
and the Purchaser understands the risk and other considerations relating to such investment.
ARTICLE VI
COVENANTS OF THE ISSUER
COVENANTS OF THE ISSUER
The Issuer agrees that, so long as there is any amount payable hereunder or either of the Purchasers
owns any Outstanding 2019 VMTP Shares:
|
6.1
|
Information
|
Without limitation of the other provisions of this Agreement, the Issuer will deliver, or direct the
Redemption and Paying Agent to deliver, to the Purchasers:
|
(a)
|
as promptly as practicable after the preparation and filing thereof with the Securities and Exchange
Commission, each annual and semi-annual report prepared with respect to the Issuer, which delivery may be made by notice of the electronic availability of any such document on a public website;
|
|
(b)
|
notice of any change in (including being put on Credit Watch or Watchlist), or suspension or termination of,
the rating on the 2019 VMTP Shares by any Rating Agency (and any corresponding change in the Rating Agency Guidelines applicable to the 2019 VMTP Shares associated with any such change in the rating from any Rating Agency) or any change
of a Rating Agency rating the 2019 VMTP Shares as promptly as practicable upon the occurrence thereof;
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|
(c)
|
notice of any redemption or other repurchase of any or all of the 2019 VMTP Shares as provided in the
Statement;
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|
(d)
|
notice of any proposed amendments to any of the Related Documents at such time as the amendments are sent to
other parties (other than the Board of Trustees) whose approval is required for such amendment and in any event not less than ten (10) Business Days prior to any proposed amendment and copies of all actual amendments thereto within ten
(10) Business Days of being signed or, in each case, as provided in the relevant document;
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|
(e)
|
notice of any missed, reduced or deferred dividend payment on the 2019 VMTP Shares that remains uncured for
more than three (3) Business Days as soon as reasonably practicable, but in no event later than one (1) Business Day after expiration of the foregoing grace period;
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|
(f)
|
notice of the failure to make any deposit provided for under Section 2.4(d) of the Statement in respect of a
properly noticed redemption as soon as reasonably practicable, but in no event later than two (2) Business Days after discovery of such failure to make any such deposit;
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|
(g)
|
notice of material non-compliance with the Rating Agency Guidelines (if applicable) for more than five (5)
consecutive Business Days as soon as reasonably practicable, but in no event later than one (1) Business Day after expiration of the foregoing grace period;
|
|
(h)
|
notice of the distribution of net capital gains or ordinary income one (1) Business Day in advance of the Rate
Period that such net capital gains or ordinary income will or may be distributed, in addition to any notice the Redemption and Paying Agent provides to Designated Owners or their Agent Members;
|
|
(i)
|
notice of any change to any investment adviser or sub-adviser of the Issuer within five (5) Business Days
after a resignation or a notice of removal has been sent by or to any investment adviser or sub-adviser;
|
|
(j)
|
notice of any proxy solicitation of shareholders by the Issuer, which may be satisfied by the delivery of the
proxy statement itself, as soon as reasonably practicable, but in no event later than five (5) Business Days after mailing thereof to all stockholders;
|
|
(k)
|
notice no later than two (2) Business Days after the occurrence thereof of (i) the failure of the Issuer to
pay the amount due on any "senior securities" (as defined under the 0000 Xxx) or other debt issued by the Issuer at the time outstanding after any period of grace or cure with respect thereto shall have expired; (ii) the failure of the
Issuer to pay, or admitting in writing its inability to pay, its debts generally as they become due; or (iii) the failure of the Issuer to pay accumulated dividends on any additional preferred stock ranking pari passu with the 2019 VMTP Shares, after any period of grace or cure with respect thereto shall have expired;
|
|
(l)
|
notice of a material breach of any representation, warranty or covenant of the Issuer contained in this
Agreement or the Registration Rights Agreement or any material violation of the terms of the Statement, in each case, only if any officer of the Issuer has actual knowledge of such breach or violation, as soon as reasonably practicable,
but in no event later than five (5) Business Days, after actual knowledge of any officer of the Issuer thereof;
|
|
(m)
|
notice of any litigation, administrative proceeding or business development which may reasonably be expected
to materially adversely affect the Issuer's business, properties or affairs or to materially impair the ability of the Issuer to perform its obligations as set forth hereunder or under any of the other Related Documents to which it is a
party as soon as reasonably practicable, but in no event later than ten (10) Business Days after actual knowledge of any officer of the Issuer thereof;
|
|
(n)
|
upon request of either Purchaser, copies of all certificates that the Issuer has delivered to each Rating
Agency that are set forth in the respective Rating Agency Guidelines (if applicable) regarding Asset Coverage and all related calculations for such certificates at such times and containing such information as set forth in the respective
Rating Agency Guidelines as soon as reasonably practicable after such certificates have been sent;
|
|
(o)
|
on the fifteenth (15th) day (or the next succeeding Business Day if the fifteenth (15th)
is not a Business Day) and last Business Day of each month (each a "Reporting Date"), a report of portfolio holdings of the Issuer as
of the end of the fifth (5th) Business Day immediately preceding each such Reporting Date, prepared on a basis substantially consistent with the periodic reports of portfolio holdings of the Issuer prepared for financial
reporting purposes;
|
|
(p)
|
on the fifteenth (15th) day (or the next succeeding Business Day if the fifteenth (15th)
is not a Business Day) and last Business Day of each month, the information set forth in Exhibit D to this Agreement and a calculation of the
Effective Leverage Ratio and the Asset Coverage of the Issuer as of the close of business of the first and third Friday (or in each case the next succeeding Business Day if such Friday is not a Business Day) of such month, respectively;
and upon the failure of the Issuer to maintain Asset Coverage as provided in Section 2.4(a) of the Statement or the Effective Leverage Ratio as required by Section 2.4(c) of the Statement, notice of such failure within one (1) Business
Day of the occurrence thereof;
|
|
(q)
|
notice of any amendment to the Pricing Procedures together with detail of such amendment within five (5)
Business Days of the occurrence thereof; and
|
|
(r)
|
from time to time such additional information regarding the financial position, results of operations or
prospects of the Issuer as either Purchaser may reasonably request including, without limitation, copies of all offering material with respect to the sale of any securities of the Issuer as soon as reasonably practicable, but in no event
later than seven (7) Business Days after such a request.
|
All information, reports and other papers, documentation and data with respect to the Issuer
furnished to either Purchaser pursuant to this Section 6.1 shall be, at the time the same are so furnished, complete and correct in all material respects and, when considered with all other material delivered to either Purchaser under this
Agreement or made available pursuant to the Due Diligence Request, will not contain untrue statements of material facts or omit to state material facts necessary to make the statements contained therein, in light of the circumstances under which
they were made, not misleading. For purposes of Sections 6.1(o) and (p), references to any day that is not a Business Day shall mean the next preceding Business Day.
|
6.2
|
No Amendment or Certain Other Actions Without Consent of the Purchasers
|
To the extent that, collectively, the Purchasers are the Holders or Designated Owners of more than
50% of the 2019 VMTP Shares then outstanding, without the prior written consent of the Purchasers, the Issuer will not agree to, consent to or permit any material amendment, supplement, modification or repeal of the Statement or any provision
therein, nor waive any provision thereof that would adversely affect the Holders; provided that, subject to Section 7.13, the Issuer will provide not less than ten (10) Business Days' written notice in accordance with Section 7.1 of this Agreement
(or such lesser number of days that the Issuer and the Purchaser agree) (the “notice period”), which notice shall be confirmed telephonically
with the Purchasers within one (1) Business Day, before the implementation of any such amendment, supplement, modification or repeal that it has determined would not have an adverse effect pursuant to this Section 6.2; provided further that the
Issuer shall not proceed with such amendment that it has determined to not have an adverse effect if the Majority Participants provide an objection stating that such amendment is adverse and providing the basis therefor not less than two (2)
Business Days prior to the end of notice period; provided further that any notice provided by the Issuer or the Purchasers pursuant to this Section 6.2 that is received after 1:00 pm Eastern time on any given day will be treated as having been
received on the following Business Day.
|
6.3
|
Maintenance of Existence
|
The Issuer shall continue to maintain its existence as a statutory trust under the laws of the State
of Delaware, with full right and power to issue the 2019 VMTP Shares and to execute, deliver and perform its obligations under this Agreement and each other Related Document.
|
6.4
|
Tax Status of the Issuer
|
The Issuer will qualify as a "regulated investment company" within the meaning of Section 851(a) of
the Code and the dividends made with respect to the 2019 VMTP Shares will qualify as "exempt interest dividends" to the extent they are reported as such by the Issuer and permitted by Section 852(b)(5)(A) of the Code.
|
6.5
|
Payment Obligations
|
The Issuer shall promptly pay or cause to be paid all amounts payable by it hereunder and under the
other Related Documents, according to the terms hereof and thereof, shall take such actions as may be necessary to include all payments hereunder and thereunder which are subject to appropriation in its budget and make full appropriations related
thereto, and shall duly perform each of its obligations under this Agreement and the other Related Documents. All payments of any sums due hereunder shall be made in the amounts required hereunder without any reduction or setoff, notwithstanding
the assertion of any right of recoupment or setoff or of any counterclaim by the Issuer.
|
6.6
|
Compliance With Law
|
The Issuer shall comply with all laws, ordinances, orders, rules and regulations that may be
applicable to it if the failure to comply would have a Material Adverse Effect.
|
6.7
|
Maintenance of Approvals: Filings, Etc.
|
The Issuer shall at all times maintain in effect, renew and comply with all the terms and conditions
of all consents, filings, licenses, approvals and authorizations as may be necessary under any applicable law or regulation for its execution, delivery and performance of this Agreement and the other Related Documents to which it is a party.
|
6.8
|
Inspection Rights
|
The Issuer shall, at any reasonable time and from time to time, upon reasonable notice, permit the
Purchasers or any agents or representatives thereof, at the Issuer's expense, to examine and make copies of the records and books of account related to the transactions contemplated by this Agreement, to visit its properties and to discuss its
affairs, finances and accounts with any of its officers and independent accountants, to the extent permitted by law, provided, however, that the Issuer shall not be required to pay for more than one inspection per fiscal year. The Issuer will not
unreasonably withhold its authorization for its independent accountants to discuss its affairs, finances and accounts with either Purchaser.
All information, reports and other papers, documentation and data with respect to the Issuer
furnished to either Purchaser pursuant to this Section 6.8 shall be, at the time the same are so furnished, complete and correct in all material respects and, when considered with all other material delivered to such Purchaser under this Agreement
or made available pursuant to the Due Diligence Request, will not contain untrue statements of material facts or omit to state material facts necessary to make the statements contained therein, in light of the circumstances under which they were
made, not misleading.
|
6.9
|
Litigation, Etc.
|
The Issuer shall (to the extend not prohibited by applicable law) give prompt notice in writing to
each Purchaser of any litigation, administrative proceeding or business development which is reasonably expected to materially adversely affect its business, properties or affairs or to materially impair the ability of the Issuer to perform its
obligations as set forth hereunder or under any of the other Related Documents.
|
6.10
|
1940 Act Registration
|
The Issuer shall maintain its valid registration as a registered closed-end company under the 1940
Act in full force and effect.
|
6.11
|
Credit Quality
|
As of the Effective Date, the Issuer (i) has invested at least 80% of its Fund Assets in investment
grade quality Municipal Securities that, at the time of investment, were rated within the four highest grades (Baa or BBB or better) by at least one of the NRSROs rating such securities or were unrated but judged to be of comparable credit quality
by the Investment Adviser; and (ii) has invested no more than 20% of its Fund Assets in Municipal Securities that at the time of investment were rated below investment grade or were unrated but judged to be of comparable credit quality by the
Investment Adviser, provided that the Issuer has invested no more than 10% of the Issuer's Fund Assets in Municipal Securities that, at the time of investment, were rated below B3/B- by an NRSRO or that were unrated but judged to be of comparable
credit quality by the Investment Adviser.
|
6.12
|
Maintenance of Effective Leverage Ratio
|
For so long as the Issuer fails to provide the information required under Sections 6.1(o) and 6.1(p)
of this Agreement, the Purchasers may calculate, for purposes of Section 2.4(d) of the Statement, the Effective Leverage Ratio using the most recently received information required to be delivered pursuant to Sections 6.1(o) and 6.1(p) and the
market values of securities determined by the third-party pricing service which provided the market values to the Issuer on the most recent date that information was properly provided by the Issuer pursuant to the requirements of Section 6.1(o) and
6.1(p). The Effective Leverage Ratio as calculated by BAPFC so long as BAPFC holds 2019 VMTP Shares, and otherwise, as calculated by Blue Ridge so long as Blue Ridge holds 2019 VMTP Shares, in such instances shall be binding on the Issuer. If
required, the Issuer shall restore the Effective Leverage Ratio as provided in the Statement.
In connection with calculating the Effective Leverage Ratio, the Issuer's total assets and accrued
liabilities shall reflect the positive or negative net obligations of the Issuer under each Derivative Contract determined in accordance with the Issuer's valuation policies.
|
6.13
|
Redemption and Paying Agent
|
The Issuer shall use its commercially reasonable efforts to engage at all times a Redemption and
Paying Agent to perform the duties to be performed by the Redemption and Paying Agent specified herein and in the Statement.
|
6.14
|
Cooperation in the Sale of the 2019 VMTP Shares
|
The Issuer will comply with reasonable due diligence requests from either Purchaser in connection
with any proposed sale by such Purchaser of the 2019 VMTP Shares in a transaction exempt from registration and otherwise permitted by this Agreement, provided that the Issuer need not comply with more than two of any such requests in any period of
twelve (12) consecutive months and any prospective purchaser of the 2019 VMTP Shares from either Purchaser shall execute a confidentiality agreement substantially to the effect of Section 7.13 hereof prior to receiving any due diligence materials
provided pursuant to such due diligence request.
All information, reports and other papers, documentation and data with respect to the Issuer
furnished to either Purchaser pursuant to this Section 6.14 shall be, at the time the same are so furnished, complete and correct in all material respects and, when considered with all other material delivered to such Purchaser under this Agreement
or made available pursuant to the Due Diligence Request, will not contain untrue statements of material facts or omit to state material facts necessary to make the statements contained therein, in light of the circumstances under which they were
made, not misleading.
|
6.15
|
Use of Proceeds
|
The net proceeds from the sale of the 2019 VMTP Shares will be used for any purpose permitted under
the Declaration, the By-Laws and this Agreement, including the redemption of the Issuer's existing VMTP Shares and the repurchase of the APS in each case within 15 Business Days of the date of this Agreement.
|
6.16
|
Securities Depository
|
The Issuer agrees to maintain settlement of the 2019 VMTP Shares in global book entry form through
the Securities Depository or such other clearance system acceptable to the Purchasers.
|
6.17
|
Future Agreements
|
The Issuer shall promptly, at the request of either Purchaser, enter into an agreement, on terms
mutually satisfactory to the Issuer and such Purchaser, of the type specified in Section 12(d)(1)(E)(iii) of the 1940 Act, so as to permit such Purchaser or any transferee satisfying the requirements set forth in Section 2.1 of this Agreement to
rely on the provisions of Section 12(d)(1)(E)(iii) of the 0000 Xxx.
|
6.18
|
Eligible Assets
|
The Issuer shall only make investments in the Eligible Assets described in Exhibit B to this Agreement, as amended from time to time with the prior written consent of the Purchasers, in accordance with the Issuer's investment objectives and the
investment policies disclosed to each Purchaser, as such investment objectives and investment policies may be modified in accordance with the 1940 Act and applicable law.
ARTICLE VII
MISCELLANEOUS
MISCELLANEOUS
|
7.1
|
Notices
|
All notices, requests and other communications to any party hereunder shall be in writing (including
telecopy, electronic mail or similar writing), except in the case of notices and other communications permitted to be given by telephone, and shall be given to such party at its address or telecopy number or email address set forth below or such
other address or telecopy number or email address as such party may hereafter specify for the purpose by notice to the other parties. Each such notice, request or other communication shall be effective when delivered at the address specified in
this Section. Except as otherwise specified, notices under Section 6.1 of this Agreement may be given by telephone to the Purchasers at the telephone numbers listed below (or such other telephone numbers as may be designated by either Purchaser, by
written notice to the Issuer, to receive such notice), promptly confirmed in writing, including by fax or electronic mail. The notice address for each party is specified below:
|
(a)
|
if to the Issuer:
|
Federated Premier Municipal Income Fund
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxx
Telephone: 000-000-0000
Email: xxxxxxx@xxxxxxxxxxxx.xxx
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(b)
|
if to BAPFC:
|
Banc of America Preferred Funding Corporation
One Bryant Park
1111 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Xxxx Xxx Xxxxx
Xxxx Xxxxxxx
Xxxxxxx Xxxxxx
Xxxx Xxxxxxxx
Telephone: (000) 000-0000 (Visone, Blasiak, Xxxxxxxx)
(000) 000-0000 (Jentis)
Email: xxxxxx.xxxxxx@xxxx.xxx
xxxx.xxx.xxxxx@xxxx.xxx
xxxx.xxxxxxx@xxxx.xxx
xxxx.x.xxxxxxxx@xxxx.xxx
xxxxxxx.xxxxxx@xxxx.xxx
(c) if to Blue Ridge:
Blue Ridge Investments, L.L.C.
One Bryant Park
1111 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Xxxx Xxx Xxxxx
Xxxx Xxxxxxx
Xxxxxxx Xxxxxx
Xxxx Xxxxxxxx
Telephone: (000) 000-0000 (Visone, Blasiak, Xxxxxxxx)
(000) 000-0000 (Jentis)
Email: xxxxxx.xxxxxx@xxxx.xxx
xxxx.xxx.xxxxx@xxxx.xxx
xxxx.xxxxxxx@xxxx.xxx
xxxx.x.xxxxxxxx@xxxx.xxx
xxxxxxx.xxxxxx@xxxx.xxx
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7.2
|
No Waivers
|
|
(a)
|
The obligations of the Issuer hereunder shall not in any way be modified or limited by reference to any other
document, instrument or agreement (including, without limitation, the 2019 VMTP Shares or any other Related Document). The rights of each Purchaser hereunder are separate from and in addition to any rights that any Holder or Designated
Owner of any 2019 VMTP Share may have under the terms of such 2019 VMTP Share or any Related Document or otherwise.
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|
(b)
|
No failure or delay by the Issuer or either Purchaser in exercising any right, power or privilege hereunder or
under the 2019 VMTP Shares shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. No failure or delay by
the Issuer or either Purchaser in exercising any right, power or privilege under or in respect of the 2019 VMTP Shares or any other Related Document shall affect the rights, powers or privileges of the Issuer or either Purchaser hereunder
or shall operate as a limitation or waiver thereof. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
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|
7.3
|
Expenses and Indemnification
|
|
(a)
|
The Issuer shall upon demand either, as each Purchaser may require, pay in the first instance or reimburse
such Purchaser (to the extent that payments for the following items are not made under the other provisions hereof) for all reasonable out-of-pocket expenses (including reasonable fees and costs of outside counsel, and reasonable
consulting, accounting, appraisal, investment banking, and similar professional fees and charges) incurred by such Purchaser in connection with the enforcement of or preservation of rights under this Agreement. The Issuer shall not be
responsible under this Section 7.3(a) for the fees and costs of more than one law firm in any one jurisdiction with respect to any one proceeding or set of related proceedings for such Purchaser, unless such Purchaser shall have
reasonably concluded that there are legal defenses available to it that are different from or additional to those available to the Issuer.
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|
(b)
|
The Issuer agrees to indemnify and hold harmless each Purchaser and each other Indemnified Person of such
Purchaser from and against any losses, claims, damages, liabilities and reasonable out-of-pocket expenses incurred by them (including reasonable fees and disbursements of outside counsel) that are related to or arise out of any claim by
any third party relating to the offering or sale of the 2019 VMTP Shares by the Issuer or the holding of the 2019 VMTP Shares by such Purchaser (A) that such Purchaser aided and abetted a breach of a fiduciary duty by the Issuer or any
trustee or officer of the Issuer or (B) arising from any act by the Issuer or any trustee or officer of the Issuer (excluding claims, losses, liabilities or expenses arising out of or resulting from the gross negligence or willful
misconduct of any Indemnified Person as determined by a court of competent jurisdiction, and excluding any consequential, special or punitive damages or losses consisting of trading losses, speculative losses, loss of profit or loss of
business opportunity).
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|
(c)
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The indemnifying party also agrees that if any indemnification sought by an Indemnified Person pursuant to
this Agreement is unavailable or insufficient, for any reason, to hold harmless the Indemnified Persons of such other party in respect of any losses, claims, damages or liabilities (or actions in respect thereof), then the indemnifying
party, in order to provide for just and equitable contribution, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, liabilities, damages and expenses (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative benefits received by the Issuer on the one hand and the Purchasers on the other hand from the actual or proposed transactions giving rise to or contemplated by this
Agreement or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, not only such relative benefits but also the relative fault of the Issuer on the one hand and the Purchasers on the other, in
connection with the statements or omissions or alleged statements or omissions that resulted in such losses, claims, damages, liabilities or expenses (or actions in respect thereof), as well as any other relevant equitable considerations;
provided that in any event the aggregate contribution of each Purchaser and their Indemnified Persons to all losses, claims, damages, liabilities and expenses with respect to which contributions are available hereunder will not exceed the
amount of dividends to be received by such Purchaser from the Issuer pursuant to the proposed transactions giving rise to this Agreement. For purposes of determining the relative benefits to the Issuer on the one hand, and the Purchasers
on the other, under the proposed transactions giving rise to or contemplated by this Agreement, such benefits shall be deemed to be in the same proportion as (i) the total value received or proposed to be received by the Issuer pursuant
to the transactions, whether or not consummated bears to (ii) the dividends and Optional Redemption Premium paid by the Issuer to such Purchaser in connection with the proposed transactions giving rise to or contemplated by this
Agreement. The relative fault of the parties shall be determined by reference to, among other things, whether the actions taken or omitted to be taken in connection with the proposed transactions contemplated by this Agreement (including
any misstatement of a material fact or the omission to state a material fact) relates to information supplied by the Issuer on the one hand, or the Purchasers on the other, the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such action, misstatement or alleged omission, and any other equitable considerations appropriate in the circumstances. No person found liable for a fraudulent misrepresentation shall be entitled to
contribution from any person who is not also found liable for such fraudulent misrepresentation. The indemnity, reimbursement and contribution obligations under this Agreement shall be in addition to any rights that any Indemnified Person
may have at common law or otherwise.
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(d)
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If any action, suit, proceeding or investigation is commenced, as to which an Indemnified Person proposes to
demand indemnification, it shall notify the indemnifying party with reasonable promptness; provided, however, that any failure by such Indemnified Person to notify the indemnifying party shall not relieve the indemnifying party from its
obligations hereunder (except to the extent that the indemnifying party is materially prejudiced by such failure to promptly notify). The indemnifying party shall be entitled to assume the defense of any such action, suit, proceeding or
investigation, including the employment of counsel reasonably satisfactory to the Indemnified Person. The Indemnified Person shall have the right to counsel of its own choice to represent it, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) the indemnifying party has failed promptly to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person in accordance with the preceding sentence
or (ii) the Indemnified Person shall have been advised by counsel that there exist actual or potential conflicting interests between the indemnifying party and such Indemnified Person, including situations in which one or more legal
defenses may be available to such Indemnified Person that are different from or additional to those available to the indemnifying party; provided, however, that the indemnifying party shall not, in connection with any one such action or
proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations be liable for fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Persons of
such other party; and such counsel shall, to the extent consistent with its professional responsibilities, cooperate with the indemnifying party and any counsel designated by the indemnifying party.
|
Each party further agrees that it will not, without the prior written consent of the other parties
(the consent of a party shall not be required to the extent such party is neither requesting indemnification nor being requested to provide indemnification), settle or compromise or consent to the entry of any judgment in any pending or threatened
claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless such settlement, compromise or
consent includes an unconditional release of the Issuer (if such settlement, compromise or consent is agreed to by the Purchaser or another Indemnified Person) or the Purchaser and each other Indemnified Person (of such settlement, compromise or
consent is agreed to by the Issuer) from all liability and obligations arising therefrom. The Issuer further agrees that neither of the Purchasers, nor any of their affiliates, nor any trustees, officers, partners, employees, agents,
representatives or control persons of either Purchaser or any of its affiliates shall have any liability to the Issuer arising out of or in connection with the proposed transactions giving rise to or contemplated by this Agreement except for such
liability for losses, claims, damages, liabilities or expenses to the extent they have resulted from the Purchasers' or their affiliates' gross negligence or willful misconduct. No Indemnified Person shall be responsible or liable to the
indemnifying party or any other person for consequential, special or punitive damages which may be alleged as a result of this Agreement.
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(e)
|
Nothing in this Section 7.3 is intended to limit any party's obligations contained in other parts of this
Agreement or the 2019 VMTP Shares.
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|
7.4
|
Amendments and Waivers
|
Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Issuer and the Purchasers; provided, that the Issuer shall not make or agree to any amendment or waiver to the Declaration or the Statement that affects any preference, right or power of the 2019 VMTP Shares or the
Holders or Designated Owners thereof except as permitted under the Declaration or the Statement.
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7.5
|
Successors and Assigns
|
The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Neither the Issuer nor either Purchaser may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party (other than by
operation of law), except, subject Section 2.1(c) of this Agreement, that (i) any transferee satisfying the requirements set forth in Section 2.1 of this Agreement and which has executed and delivered to the Issuer the transferee certificate
attached as Exhibit C shall, prior to registration of any 2019 VMTP Shares under the Securities Act, have the rights set forth in Section 6.17 and
Section 7.15 of this Agreement and shall, so long as such transferee has provided a means for the Issuer to transmit such information electronically to it, be entitled to receive the information delivered pursuant to Sections 6.1(o) and 6.1(p) of
this Agreement and such transferees shall be deemed a party to this Agreement for purposes of Sections 6.1(o), 6.1(p) and the confidentiality provisions herein as specified in the transferee certificate and (ii) each Purchaser may assign its rights
or obligations to any affiliate of such Purchaser or any tender option bond trust (or similar vehicles used for providing financing for municipal obligations and municipal closed-end fund preferred shares) in which such Purchaser or an affiliate of
such Purchaser retains the entire residual interest. Any assignment without such prior written consent shall be void.
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7.6
|
Term of this Agreement
|
This Agreement shall terminate on the earlier of (i) the registration of any Outstanding 2019 VMTP
Shares under the Securities Act and (ii) payment in full of all amounts then due and owing to either Purchaser hereunder and under the 2019 VMTP Shares. For the avoidance of doubt, if either Purchaser sells all of its 2019 VMTP Shares (other than
to an affiliate) and, in the case of a sale to a tender option bond trust (or similar vehicles used for providing financing for municipal obligations and municipal closed-end fund preferred shares), neither the Purchaser, nor any affiliate of the
Purchaser, retains any residual interest or similar interest in any VMTP Shares sold to a tender option bond trust (or similar vehicles used for providing financing for municipal obligations and municipal closed-end fund preferred shares) or
otherwise does not repurchase the VMTP Shares from the tender option bond trust (or similar vehicles used for providing financing for municipal obligations and municipal closed-end fund preferred shares), no further amounts will be due and owing to
the Purchaser with respect to such VMTP Shares for purposes of this Section 7.6. Notwithstanding any termination of this Agreement or the prior sentence, Section 7.3, Section 7.5, Section 7.7, Section 7.8, Section 7.10, Section 7.11, the second
sentence of Section 7.12, and Section 7.13 (for a period of two years after the termination of this Agreement) of this Agreement shall remain in full force and effect.
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7.7
|
Governing Law
|
This Agreement shall be construed in accordance with and governed by the domestic law of the State of
New York.
THE PARTIES HERETO HEREBY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE
COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH ANY DISPUTE RELATED TO THIS AGREEMENT OR ANY MATTERS CONTEMPLATED HEREBY.
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7.8
|
Waiver of Jury Trial
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The Issuer and each Purchaser hereby waive trial by jury in any action, proceeding or counterclaim
brought by either of the parties hereto against any other on any matters whatsoever arising out of or in any way connected with this Agreement.
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7.9
|
Counterparts
|
This Agreement may be signed in counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument. Any counterpart or other signature delivered by facsimile or by electronic mail shall be deemed for all purposes as being a good and valid execution and delivery of this
Agreement by that party.
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7.10
|
Beneficiaries
|
This Agreement is not intended and shall not be construed to confer upon any Person, other than the
parties hereto and their successors and permitted assigns, any rights or remedies hereunder.
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7.11
|
Entire Agreement
|
Except as set forth in Section 7.5, this Agreement shall constitute the entire agreement and
understanding between the parties hereto with respect to the matters set forth herein and shall supersede any and all prior agreements and understandings relating to the subject matter hereof.
|
7.12
|
Relationship to the Statement
|
The Issuer and each Purchaser agree that the representations, warranties, covenants and agreements
contained in this Agreement are in addition to the terms and provisions set forth in the Statement. As between the Issuer and each Purchaser, the Issuer and each Purchaser agree that Section 2.11(c) of the Statement shall have no effect for so long
as none of the 2019 VMTP Shares have been registered under the Securities Act.
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7.13
|
Confidentiality
|
Any information delivered by a party to this Agreement to any other party pursuant to this Agreement,
including, without limitation, pursuant to Section 6.1 of this Agreement in the case of the Issuer (collectively, the "Information"), shall not
be disclosed by such other party (or its employees, representatives or agents) to any person or entity (except as required by law or to such of its agents and advisors as need to know and agree to be bound by the provisions of this paragraph) or
used by such other party for any purpose other than as contemplated by this Agreement without the prior written consent of the party delivering the Information. The Parties agree that the Information, including but not limited to, the information
provided pursuant to Sections 6.1(o) and Section 6.1(p) of this Agreement, to the extent constituting material, nonpublic information, shall be used solely for the purposes set forth in the next paragraph of this Section 7.13 and for purposes of
making, monitoring and evaluation of the investment in the 2019 VMTP Shares, and for no other purpose.
The obligations of confidentiality set out in the preceding paragraph do not extend to Information
that is or becomes available to the public or is or becomes available to the party receiving the Information on a non-confidential basis or is disclosed to Holders or Designated Owners or potential Holders or Designated Owners, in each case in
their capacity as such, in the offering documents of the Issuer, in notices to Holders or Designated Owners pursuant to one or more of the Related Documents or pursuant to the Issuer's or each Purchaser's informational obligations under Rule
144A(d)(4) or other reporting obligation of the Securities and Exchange Commission; or is required or requested to be disclosed (i) by a regulatory agency or in connection with an examination of either party or its representatives by regulatory
authorities, (ii) pursuant to subpoena or other court process, (iii) at the express direction of any other authorized government agency, (iv) to its independent attorneys or auditors, (v) as required by any NRSRO, (vi) as otherwise required by law
or regulation, (vii) otherwise in connection with the enforcement of this Agreement, (viii) in connection with the exercise of any remedies hereunder or in any suit, action or proceeding relating to this Agreement and the enforcement of rights
hereunder, (ix) by a prospective purchaser of the 2019 VMTP Shares that is (a) a transferee that would be permitted pursuant to Section 2.1(b) of this Agreement and (b) aware of the confidentiality provisions of this Section 7.13 and is subject to
an agreement with the transferor containing provisions substantially similar thereto and that states that the Issuer is an express third party beneficiary thereof, (x) subject to an agreement containing provisions substantially similar to those of
this Section 7.13, or (xi) subject to an agreement containing provisions substantially similar to those of this Section 7.13 and with the prior written consent of the other party to this Agreement, which consent shall not be unreasonably withheld,
to any actual or prospective counterparty in any swap or derivative transactions. For the avoidance of doubt, references in this Section 7.13 to "regulatory agency," "regulatory authorities," "government agency" and "law or regulation" shall be
deemed to include the Internal Revenue Service and state taxation authorities.
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7.14
|
Severability
|
In case any provision of this Agreement shall be invalid, illegal, or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby so long as the intent of the parties to this Agreement shall be preserved.
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7.15
|
Consent Rights of the Majority Participants to Certain Actions
|
For so long as none of the 2019 VMTP Shares have been registered under the Securities Act, without
the affirmative vote or consent of the Majority Participants, neither the Issuer nor the Board of Trustees will take or authorize the taking of any of the actions set forth under clauses (a) through (e) of this Section 7.15:
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(a)
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The termination by the Issuer of any Rating Agency or the selection of any Other Rating Agency, either in
replacement for a Rating Agency or as an additional Rating Agency with respect to the 2019 VMTP Shares unless (i) immediately following such termination, there would be at least one Rating Agency with respect to the 2019 VMTP Shares or
(ii) it replaces the terminated Rating Agency with another Rating Agency and provides notice thereof to the Holders of such 2019 VMTP Shares; provided that such replacement shall no occur unless such replacement other Rating Agency shall
have at the time of such replacement (i) published a rating for the 2019 VMTP Shares and (ii) entered into an agreement with the Issuer to continue to publish such rating subject to the Rating Agency’s customary conditions.
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|
(b)
|
The Issuer issuing or suffering to exist any "senior security" (as defined in the 1940 Act as of the date
hereof, but not including a Derivative Contract, or, in the event such definition shall be amended, with such changes to the definition thereof as consented to by the Majority Participants) other than the 2019 VMTP Shares issued and sold
pursuant to this Agreement or indebtedness for borrowed money of the Issuer, except (i) borrowings for temporary purposes in an amount not to exceed 5% of the assets of the Issuer, which borrowings are repaid within sixty (60) days,
(ii) the issuance of senior securities or the incurrence of indebtedness for borrowed money, the proceeds of which will be used for the redemption or repurchase of the 2019 VMTP Shares and costs incurred in connection therewith, (iii) any
outstanding APS as the date hereof, (iv) the Issuer’s issuance of tender options bonds or creation of a tender option bond trust (or similar vehicles used for providing financing for municipal obligations and municipal closed-end fund
preferred shares), if any and (v) as may be otherwise approved or consented to by the Majority Participants, provided that if any such "senior security" is created or incurred by the Issuer it shall not require the approval of the
Majority Participants if the Issuer redeems, retires or terminates such "senior security" or otherwise cures such non-compliance within five Business Days of receiving notice of the existence thereof.
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|
(c)
|
The Issuer (i) creating or incurring or suffering to be incurred or to exist any lien on any other funds,
accounts or other property held under the Declaration or the Statement, except as permitted by the Declaration or the Statement or (ii) except for any lien for the benefit of the Custodian of the Issuer on the assets of the Issuer held by
such Custodian, any lien arising by operation of law, pledging any portfolio security to secure any senior securities or other liabilities to be incurred by the Issuer (including under any tender option bond trust (or similar vehicles
used for providing financing for municipal obligations and municipal closed-end fund preferred shares) of which the residual floating rate trust certificates will be owned by the Issuer) unless the securities pledged pursuant to all such
pledges or other security arrangements are valued for purposes of such security arrangements in an aggregate amount not less than 70% of their aggregate market value (determined by an independent third party pricing service) for purposes
of determining the value of the collateral required to be posted or otherwise provided under all such security arrangements; provided, that the required collateral value under such security arrangements shall not exceed the market value
of the exposure of each secured party to the credit of the Issuer; and provided further, that it shall not require the approval of the Majority Participants if any pledge or security interest in violation of the preceding sentence is
created or incurred by the Issuer and the Issuer cures such violation within five (5) Business Days of receiving notice of the existence thereof.
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|
(d)
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Approval of any amendment, alteration or repeal of any provision of the Declaration or the Statement, whether
by merger, consolidation or otherwise, that would affect any preference, right or power of the 2019 VMTP Shares differentially from the rights of the holders of the Common Shares; or
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|
(e)
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Approval of any action to be taken pursuant to Sections 2.6(h) of the Statement (other than the issuance of
additional series of Variable Rate Municipal Term Preferred Shares or other Preferred Shares, the proceeds of which will be used for the redemption or repurchase of the 2019 VMTP Shares and costs incurred in connection therewith).
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In addition, if the Board of Trustees shall designate a replacement to the S&P Municipal Bond
7-Day High Grade Index pursuant to the definition of SIFMA Municipal Swap Index contained in the Statement, the Issuer shall notify the Holders of the 2019 VMTP Shares within five (5) Business Days of such designation, and if within thirty (30)
days of such notice the Majority Participants shall have objected in writing to the designated replacement (such date of objection, the "Objection Date"),
the Board of Trustees shall designate a replacement to such index as agreed to between the Issuer and the Majority Participants. In such event, the replacement index initially approved by the Board of Trustees shall be the index in effect for
purposes of the Statement until a new index has been approved by the Issuer and the Majority Participants; provided that if the Majority Participants are unable to agree to a new index within ninety (90) days of the Objection Date, such ninetieth
90th day shall be deemed to be a Mandatory Tender Event pursuant to Section 2.5(a)(i)(A) of the Statement and the 2019 VMTP Shares shall be subject to the applicable provision in the Statement relating to such a Mandatory Tender Event.
[The remainder of this page has been intentionally left blank.]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
FEDERATED PREMIER MUNICIPAL INCOME FUND
By: ___/s/ Xxxxxx X. Xxxxxx ______________
Name: Xxxxxx X. Xxxxxx
Title: Assistant Secretary
BANC OF AMERICA PREFERRED FUNDING CORPORATION
By: ___/s/ Xxxxxxx Xxxxxx __________________
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
BLUE RIDGE INVESTMENTS, L.L.C.
By: ___/s/ Xxxxxxx Xxxxxx __________________
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
SCHEDULE 1
| Description of 2019 VMTP Shares: |
2,272 Federated Premier Municipal Income Fund 2019 VMTP Shares with a Liquidation Preference of $50,000 per share.
|
SCHEDULE 2
1. Aberdeen Investment Management Inc.
2. AllianceBernstein Holdings L.P.
3. American Century Investment Management, Inc.
4. BMO Xxxxxx Financial Advisors, Inc.
5. The Dreyfus Corporation
6. BlackRock Advisors, LLC
7. Capital Research and Management Company
8. Xxxxxxx Xxxxxx Investment Management, Inc.
9. Columbia Management Investment Advisors, LLC
10. Cutwater Asset Management Corp.
11. Delaware Management Business Trust
12. Deutsche Investment Management Americas Inc.
13. Xxxxx Xxxxx Management
14. Federated Investment Management Company
15. Fidelity Management & Research Company
16. First Investors Management Company, Inc.
17. Franklin Advisers, Inc.
18. GE Asset Management Incorporated
19. Xxxxxxx Xxxxx Asset Management, L.P.
20. Invesco Advisers Inc.
21. Xxxx Xxxxxxx Advisers, LLC
22. X.X. Xxxxxx Investment Management Inc.
23. Lord Xxxxxx & Co. LLC
24. MacKay Xxxxxxx LLC
25. Massachusetts Financial Services Company
26. Xxxxxx Xxxxxxx Investment Management Inc.
27. XxXxxxxxx Investment Management, LLC
28. Xxxxxxxxx Xxxxxx Investment Advisers LLC
29. Northern Trust Investments, Inc.
30. Nuveen Fund Advisors, LLC
31. OFI Global Asset Management, Inc.
32. Xxxxxx & Rygel
33. Pacific Investment Management Company LLC
34. Principal Management Corporation
35. Prudential Investment Management, Inc.
36. Xxxxxx Investment Management, LLC
37. Silvercrest Asset Management Group, LLC
38. T Xxxx Price Associate, Inc.
39. UBS Global Asset Management (Americas) Inc.
40. The Vanguard Group, Inc.
41. Xxxxxxx & Xxxx, Inc.
42. Western Asset Management Company
43. Xxxxx Capital Management Incorporated
EXHIBIT A
FORMS OF OPINIONS OF COUNSEL FOR THE ISSUER
EXHIBIT A-1
FORM OF CORPORATE AND 1940 ACT OPINION
FORM OF CORPORATE AND 1940 ACT OPINION
[ON FILE]
EXHIBIT A-2
FORM OF TAX OPINION
FORM OF TAX OPINION
[ON FILE]
EXHIBIT B
ELIGIBLE ASSETS
On the Effective Date and at all times thereafter:
1. All assets in the Issuer consist of "Eligible Assets", defined to consist only of the following as of the time of investment:
A. Debt obligations
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i.
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"Municipal securities", defined as obligations of, or securities issued by, a State, the
District of Columbia, a U.S. territory, or a political subdivision thereof and including general obligations, limited obligation bonds, revenue bonds, and obligations that satisfy the requirements of section 142(b)(1) of the Internal
Revenue Code of 1986 issued by or on behalf of any State, the District of Columbia, any U.S. territory or any political subdivision thereof, including any municipal corporate instrumentality of 1 or more States, or any public agency or
authority of any State, the District of Columbia, any U.S. territory or any political subdivision thereof. The purchase of any municipal security will be based upon the Investment Adviser's assessment of an asset's relative value in
terms of factors such as current yield, price, credit quality, and future prospects; and the Investment Adviser will monitor the creditworthiness of the Issuer's portfolio investments and analyze economic, political and demographic trends
affecting the markets for such assets. For avoidance of doubt, municipal securities shall include debt obligations issued through conduit issuers. Eligible Assets shall include any municipal securities that at the time of purchase are
paying scheduled principal and interest or if at the time of purchase are in payment default, then in the sole judgment of the Investment Adviser are expected to produce payments of principal and interest whose present value exceeds the
purchase price.
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ii.
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Debt obligations of the United States.
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|
iii.
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Debt obligations issued, insured, or guaranteed by a department or an agency of the U.S.
Government, if the obligation, insurance, or guarantee commits the full faith and credit of the United States for the repayment of the obligation.
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iv.
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Debt obligations of the Washington Metropolitan Area Transit Authority guaranteed by the
Secretary of Transportation under Section 9 of the National Capital Transportation Act of 1969.
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v.
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Debt obligations of the Federal Home Loan Banks.
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vi.
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Debt obligations, participations or other instruments of or issued by the Federal National
Mortgage Association or the Government National Mortgage Association.
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vii.
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Debt obligations which are or ever have been sold by the Federal Home Loan Mortgage
Corporation pursuant to sections 305 or 306 of the Federal Home Loan Mortgage Corporation Act.
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viii.
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Debt obligations of any agency named in 12 U.S.C. § 24(Seventh) as eligible to issue
obligations that a national bank may underwrite, deal in, purchase and sell for the bank's own account, including qualified Canadian government obligations.
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ix.
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Debt obligations of issuers other than those specified in (i) through (viii) above that
are "investment grade" and that are "marketable." For these purposes, an obligation is:
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(aa) "marketable" if:
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●
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it is registered under the Securities Act;
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●
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it is offered and sold pursuant to Securities and Exchange Commission Rule 144A; 17 CFR 230.144A; or
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●
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it can be sold with reasonable promptness at a price that corresponds reasonably to its fair value; and
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(bb) "investment grade" if:
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●
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the obligor had adequate capacity to meet financial commitments under the security for the projected life of
the asset or exposure, which capacity is presumed if the risk of default by the obligor is low and the full and timely repayment of principal and interest is expected.
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x.
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Certificates or other securities evidencing ownership interests in a municipal bond trust
structure (generally referred to as a tender option bond structure) that invests in (a) debt obligations of the types described in (i) above or (b) depository receipts reflecting ownership interests in accounts holding debt obligations of
the types described in (i) above.
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xi.
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The bonds, notes and other debt securities referenced in (A) above shall be defined as
Eligible Assets. An asset shall not lose its status as an Eligible Asset solely by virtue of the fact that:
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●
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it provides for repayment of principal and interest in any form including fixed and floating rate, zero
interest, capital appreciation, discount, leases, and payment in kind; or
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●
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it is for long-term or short-term financing purposes.
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B. Derivatives
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i.
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Interest rate derivatives (which shall for the avoidance of doubt include forward rate
agreements on MMD and BVAL AAA yield curves);
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ii.
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Swaps, futures, forwards, structured notes, options and swaptions related to Eligible
Assets or on an index related to Eligible Assets; or
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iii.
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Credit default swaps.
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C. Other Assets
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i.
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Shares of other investment companies (open- or closed-end funds and ETFs) the assets of
which consist entirely of Eligible Assets based on the Investment Adviser's assessment of the assets of each such investment company taking into account the investment company's most recent publicly available schedule of investments and
publicly disclosed investment policies.
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ii.
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Cash.
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iii.
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Repurchase agreements on assets described in A above.
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iv.
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Taxable fixed-income securities, for the purpose of acquiring control of an issuer whose
municipal bonds (a) the Issuer already owns and (b) have deteriorated or are expected shortly to deteriorate that such investment should enable the Issuer to better maximize its existing investment in such issuer, provided that the Issuer
may invest no more than 0.5% of its total assets in such securities.
|
D. Other assets, upon written agreement of all holders of the 2019 VMTP Shares ("Holders") that such assets are eligible for purchase by the Issuer.
2. The Investment Adviser has instituted policies and procedures that it believes are sufficient to ensure that the Issuer and it comply with the representations, warranties and
covenants contained in this Exhibit to this Agreement.
3. The Issuer will, upon request, provide each Holder and their internal and external auditors and inspectors as such Holder may from time to time designate, with all reasonable
assistance and access to information and records of the Issuer relevant to the Issuer's compliance with and performance of the representations, warranties and covenants contained in this Exhibit to this Agreement, but only for the purposes of
internal and external audit.
EXHIBIT C
TRANSFEREE CERTIFICATE
TRANSFEREE CERTIFICATE
Federated Premier Municipal Income Fund
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxx
Ladies and Gentlemen:
Reference is hereby made to the Purchase Agreement (the "Purchase Agreement"), dated as of October
18, 2019, among Federated Premier Municipal Income Fund, a Delaware statutory trust (the "Fund"), Banc of America Preferred Funding Corporation ("BAPFC"), a Delaware corporation, including its successors by merger or operation of law, and Blue
Ridge Investments, L.L.C. ("Blue Ridge"), a Delaware limited liability company, including its successors by merger or operation of law. [BAPFC][Blue Ridge] is referred to as the "Transferor" in this certificate. Capitalized terms used but not
defined herein shall have the meanings given them in the Purchase Agreement.
In connection with the proposed sale by the Transferor of _______________ 2019 VMTP Shares (the
"Transferred Shares") to the undersigned transferee (the "Transferee"), the undersigned agrees and acknowledges, on its own behalf, and makes the representations and warranties, on its own behalf, as set forth in this certificate (this "Transferee
Certificate") to the Fund and the Transferor:
1. The Transferee certifies to one of the following (check a box):
q it is a "qualified institutional buyer" (a "QIB") (as defined in Rule 144A under the Securities Act or any successor provision) ("Rule 144A") that is (a) a registered
closed-end management investment company, the shares of which are traded on a national securities exchange, or registered open-end management investment company, in either case, that (X) is either sponsored or managed by an entity listed on
Schedule 2 to the Purchase Agreement or any other entity that is controlled by, controlling or under common control with an entity listed on Schedule 2 to the Purchase Agreement and (Y) invests primarily in municipal obligations (each, a
"Registered Investment Company"); (b) bank or entity that is a 100% direct or indirect subsidiary of a bank's publicly traded parent holding company (collectively, "Banks"); or (c) an insurance company, in each case, pursuant to Rule 144A or
another available exemption from registration under the U.S. Securities Act of 1933, as amended (the "Securities Act"), in a manner not involving any public offering within the meaning of Section 4(a)(2) of the Securities Act;
q it is a tender option bond trust (or
similar vehicles used for providing financing for municipal obligations and municipal closed-end fund preferred shares) in which all investors are QIBs that are Registered Investment Companies, Banks or insurance companies (or, in the case of a
tender option bond trust (or similar vehicles used for providing financing for municipal obligations and municipal closed-end fund preferred shares) in which the Holder or an affiliate of the Holder retains a residual interest); or
q is a person which the Fund has
consented in writing to permit to be the holder of the Transferred Shares.
2. The Transferee certifies that it (check a box):
q is not a Federated Person that after
such sale and transfer, would own more than 20% of the Outstanding 2019 VMTP Shares; or
q is a Federated Person that after
such sale and transfer, would own more than 20% of the Outstanding 2019 VMTP Shares and it has received the prior written consent of each of the Fund and the holder(s) of more than 50% of the outstanding 2019 VMTP Shares to invest in those shares.
3. The Transferee understands and acknowledges that the Transferred Shares are "restricted securities" and have not been registered under the
Securities Act or any other applicable securities law, are being offered for sale pursuant to Rule 144A of the Securities Act or another available exemption from registration under the Securities Act, in a manner not involving any public offering
with the meaning of Section 4(a)(2) of the Securities Act, and may not be offered, sold or otherwise transferred except in compliance with the registration requirements of the Securities Act or any other applicable securities law, pursuant to an
exemption therefrom or in a transaction not subject thereto and in each case in compliance with the conditions for transfer set forth in this Transferee Certificate.
4. The Transferee is purchasing the Transferred Shares for its own account for investment, and not with a view to, or for offer or sale in
connection with, any distribution thereof in violation of the Securities Act, subject to any requirements of law that the disposition of its property be at all times within its or their control and subject to its or their ability to resell such
securities pursuant to Rule 144A or any exemption from registration available under the Securities Act.
5. The Transferee agrees on its own behalf and on behalf of each subsequent holder or owner of the Transferred Shares by its acceptance thereof
will agree to sell, transfer or otherwise dispose of the Transferred Shares only in whole shares and only to (1)(i) to Persons that it reasonably believes are QIBs that are (a) registered closed-end management investment companies, the shares of
which are traded on a national securities exchange, and registered open-end management investment companies, in each case, that (X) are either sponsored or managed by an entity listed on Schedule 2 to the Purchase Agreement or any other entity that
is controlled by, controlling or under common control with an entity listed on Schedule 2 to the Purchase Agreement and (Y) invest primarily in municipal obligations (each, a "Registered Investment Company"); (b) banks or entities that are 100% direct or indirect subsidiaries of banks' publicly traded parent holding companies (collectively, "Banks"); or (c) insurance companies, in each case, pursuant to Rule 144A or another available exemption from registration under the Securities Act, in a manner not involving any public
offering within the meaning of Section 4(a)(2) of the Securities Act, (ii) to tender option bond trusts (or similar vehicles used for providing financing for municipal obligations and municipal closed-end fund preferred shares) in which all
investors are Persons that the Transferor reasonably believes are QIBs that are Registered Investment Companies, Banks or insurance companies (or, in the case of a tender option bond trust (or similar vehicles used for providing financing for
municipal obligations and municipal closed-end fund preferred shares) in which the Holder or an affiliate of the Holder retains a residual interest), or (iii) to other investors with the prior written consent of the Issuer and (2) unless the prior
written consent of each of the Issuer and the Majority Participants has been obtained, not to Federated Persons if such Federated Persons would, after such sale and transfer, own more than 20% of the Outstanding 2019 VMTP Shares.
6. The Transferee acknowledges that the 2019 VMTP Shares were issued in book-entry form and are represented by one global certificate and that
the global certificate representing the 2019 VMTP Shares (unless sold to the public in an underwritten offering of the 2019 VMTP Shares pursuant to a registration statement filed under the Securities Act) contains a legend substantially to the
following effect:
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO SELL, TRANSFER OR OTHERWISE DISPOSE OF SUCH SECURITY ONLY
IN WHOLE SHARES AND ONLY (1)(I) TO PERSONS THAT IT REASONABLY BELIEVES ARE QUALIFIED INSTITUTIONAL BUYERS ("QIBS") THAT ARE (A) REGISTERED CLOSED-END MANAGEMENT INVESTMENT COMPANIES, THE SHARES OF WHICH ARE TRADED ON A NATIONAL SECURITIES EXCHANGE,
AND REGISTERED OPEN-END MANAGEMENT INVESTMENT COMPANIES, IN EACH CASE, THAT (X) ARE EITHER SPONSORED OR MANAGED BY AN ENTITY LISTED ON SCHEDULE 2 TO THE PURCHASE AGREEMENT OR ANY OTHER ENTITY THAT IS CONTROLLED BY, CONTROLLING OR UNDER COMMON
CONTROL WITH AN ENTITY LISTED ON SCHEDULE 2 TO THE PURCHASE AGREEMENT AND (Y) INVEST PRIMARILY IN MUNICIPAL OBLIGATIONS (EACH, A "REGISTERED INVESTMENT COMPANY"); (B) BANKS OR ENTITIES THAT ARE 100% DIRECT OR INDIRECT SUBSIDIARIES OF BANKS'
PUBLICLY TRADED PARENT HOLDING COMPANIES (COLLECTIVELY, "BANKS"); OR (C) INSURANCE COMPANIES, IN EACH CASE, PURSUANT TO RULE 144A OR ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, IN A MANNER NOT INVOLVING ANY PUBLIC
OFFERING WITHIN THE MEANING OF SECTION 4(a)(2) OF THE SECURITIES ACT, (II) TO TENDER OPTION BOND TRUSTS (OR SIMILAR VEHICLES USED FOR PROVIDING FINANCING FOR MUNICIPAL OBLIGATIONS AND MUNICIPAL CLOSED-END FUND PREFERRED SHARES) IN WHICH ALL
INVESTORS ARE PERSONS THAT THE HOLDER REASONABLY BELIEVES ARE QIBS THAT ARE REGISTERED INVESTMENT COMPANIES, BANKS OR INSURANCE COMPANIES (OR, IN THE CASE OF A TENDER OPTION BOND TRUST (OR SIMILAR VEHICLES USED FOR PROVIDING FINANCING FOR MUNICIPAL
OBLIGATIONS AND MUNICIPAL CLOSED-END FUND PREFERRED SHARES) IN WHICH THE HOLDER OR AN AFFILIATE OF THE HOLDER RETAINS A RESIDUAL INTEREST), OR (III) TO OTHER INVESTORS WITH THE PRIOR WRITTEN CONSENT OF THE FUND AND (2) UNLESS THE PRIOR WRITTEN
CONSENT OF EACH OF THE FUND AND THE MAJORITY PARTICIPANTS HAS BEEN OBTAINED, NOT TO FEDERATED PERSONS IF SUCH FEDERATED PERSONS WOULD, AFTER SUCH SALE AND TRANSFER, OWN MORE THAN 20% OF THE OUTSTANDING 2019 VMTP SHARES.
ANY TRANSFER IN VIOLATION OF THE FOREGOING TRANSFER RESTRICTIONS WILL BE VOID AB INITIO AND ANY TRANSFEREE OF 2019 VMTP SHARES TRANSFERRED IN VIOLATION OF THE FOREGOING RESTRICTIONS SHALL BE DEEMED TO AGREE TO HOLD ALL PAYMENTS IT RECEIVED ON ANY
IMPROPERLY TRANSFERRED 2019 VMTP SHARES IN TRUST FOR THE BENEFIT OF THE TRANSFEROR OF SUCH 2019 VMTP SHARES.
7. The Transferee has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the
merits and risks of the prospective investment in the Transferred Shares, and has so evaluated the merits and risks of such investment. The Transferee is able to bear the economic risk of an investment in the Transferred Shares and, at the present
time, is able to afford a complete loss of such investment.
8. The Transferee is not purchasing the Transferred Shares as a result of any advertisement, article, notice or other communication regarding
the Transferred Shares published in, nor was it offered the Transferred Shares by, any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or, to its knowledge, any other general solicitation or
general advertisement.
9. Other than consummating the purchase of the Transferred Shares, the Transferee has not directly or indirectly, nor has any person acting on
behalf of or pursuant to any understanding with the Transferee, executed any other purchases of securities of the Fund which may be integrated with the proposed purchase of the Transferred Shares by the Transferee.
10. The Transferee acknowledges that it has received a copy of the Purchase Agreement and Appendices thereto and agrees to abide by any
obligations therein binding on a transferee of the 2019 VMTP Shares and the confidentiality obligations therein with respect to information relating to the Fund as if it were the Transferor.
11. The Transferee acknowledges that it has received a copy of the Registration Rights Agreement and agrees to abide by any obligations therein
binding on a transferee of the 2019 VMTP Shares.
The Transferee acknowledges that, in the event that the Transferor transfers, in accordance with
Section 2.1(b) of the Purchase Agreement, 2019 VMTP Shares to a tender option bond trust (or similar vehicles used for providing financing for municipal obligations and municipal closed-end fund preferred shares) in which the Transferor retains a
residual interest and, subject to Section 2.1(c) of the Purchase Agreement, for so long as no event has occurred that results in the termination of such tender option bond trust (or similar vehicles used for providing financing for municipal
obligations and municipal closed-end fund preferred shares), for purposes of each of the Applicable Sections that requires, permits or provides for (i) notice or the delivery of information to or (ii) voting of the 2019 VMTP Shares or the giving of
any consent by or (iii) payment of fees, in each case, to the Transferor or the Majority Participants, the Transferor, and not such tender option bond trust (or similar vehicles used for providing financing for municipal obligations and municipal
closed-end fund preferred shares), shall be deemed to be the actual owner of such 2019 VMTP Shares.
12. The Transferee acknowledges that it has been given the opportunity to obtain from the Fund the information referred to in Rule 144A(d)(4)
under the Securities Act, and has either declined such opportunity or has received such information and has had access to and has reviewed all information, documents and records that it has deemed necessary in order to make an informed investment
decision with respect to an investment in the Transferred Shares and that the Transferee understands the risk and other considerations relating to such investment.
13. The Transferee acknowledges that it has sole responsibility for its own due diligence investigation and its own investment decision relating
to the Transferred Shares. The Transferee understands that any materials presented to the Transferee in connection with the purchase and sale of the Transferred Shares does not constitute legal, tax or investment advice from the Fund. The
Transferee has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with the purchase of the Transferred Shares.
14. The Transferee acknowledges that each of the Transferor and the Fund and their respective affiliates and others will rely on the
acknowledgments, representations and warranties contained in this Transferee's Certificate as a basis for exemption of the sale of the Transferred Shares under the Securities Act, under the securities laws of all applicable states, and for other
purposes. The Transferee agrees to promptly notify the Fund and the Transferor if any of the acknowledgments, representations or warranties set forth herein is no longer accurate.
15. If the Transferee is acquiring the Transferred Shares as a fiduciary or agent for one or more investor accounts, it represents that it has
investment discretion with respect to each such account and that it has full power to make the foregoing acknowledgements, representations and agreements on behalf of each such account.
16. This Transferee's Certificate shall be governed by and construed in accordance with the laws of the State of New York.
17. The Transferee agrees to provide, together with this completed and signed Transferee's Certificate, a completed and signed IRS Form W-9, Form
W-8 or successor form, as applicable.
[Signature Page Follows.]
The undersigned has provided a completed and signed IRS Form W-9, Form W-8 or successor form, as applicable, and has
caused this Transferee's Certificate to be executed by its duly authorized representative as of the date set forth below.
Date: ______________________
Name of Transferee (use exact name in which Transferred Shares are to be registered):
__________________________________________
__________________________________________
Authorized Signature
__________________________________________
Print Name and Title
Address of Transferee for Registration of Transferred Shares:
__________________________________________
__________________________________________
__________________________________________
Transferee's taxpayer identification number:
__________________________________________
EXHIBIT D
INFORMATION TO BE PROVIDED BY THE ISSUER
INFORMATION TO BE PROVIDED BY THE ISSUER
Reporting as of:____________
TOB Floaters: $____________
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CUSIP
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Portfolio Name
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Description
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Market Value
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Par Value
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Rating
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State
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|
[l]
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[l]
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[l]
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[l]
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[l]
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[l]
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[l]
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EXHIBIT E
ADDITIONAL REPRESENTATIONS AND WARRANTIES(Given only as of the Effective Date)
ADDITIONAL REPRESENTATIONS AND WARRANTIES(Given only as of the Effective Date)
1. Assuming compliance by each Purchaser of its representations, warranties, covenants and agreements in this Agreement, no registration of the 2019 VMTP Shares under the
Securities Act is required.
2. As of the Effective Date, the 2019 VMTP Shares will satisfy the eligibility requirements of Rule 144A(d)(3) under the Securities Act, and no securities of the same class (within
the meaning of Rule 144A(d)(3) under the Securities Act) as the 2019 VMTP Shares are listed on any national securities exchange registered under Section 6 of the Securities Exchange Act of 1934, as amended, or quoted in a U.S. automated inter-dealer quotation system.
3. The Issuer will take all reasonable measures to ensure that any Bloomberg screen containing information about the 2019 VMTP Shares includes the following (or similar) language:
• the "Note Box" on the bottom of the "Security Display" page describing the 2019 VMTP Shares will state: "Iss'd Under 144A."
• the "Security Display" page will have flashing a red indicator "See Other Available Information."
• the indicator will link to the "Additional Security Information" page, which will state that the securities "are being offered in reliance on the exemption from registration
under Rule 144A of the Securities Act to persons who are qualified institutional buyers (as defined in Rule 144A under the Securities Act)."
4. The Issuer will instruct The Depository Trust Company ("DTC") to take these or similar steps with respect to the 2019 VMTP Shares:
• the DTC 20-character security descriptor and 48-character additional descriptor will indicate that sales are limited to QIBs.
5. The Issuer has confirmed that CUSIP has established a "fixed field" attached to the CUSIP number for the 2019 VMTP Shares containing the "144A" indicator.
6. The Issuer has made in the past five (5) years all the filings with the Securities and Exchange Commission that it is required to make under the 1940 Act and the rules and
regulations thereunder (the "1940 Act Rules and Regulations") (each such filing, a "1940 Act Document") and each 1940 Act Document complied at the time of filing in all material respects with the requirements of the 1940 Act and the 1940 Act Rules
and Regulations.
7. Other than the pursuant to the Registration Rights Agreement, no holders of the 2019 VMTP Shares have rights to the registration of such 2019 VMTP Shares.
8. The Issuer is not in violation or default of any provision of its Declaration or the Statement, or in material violation of (i) the terms of any material indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject or (ii) any material statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Issuer or any of its properties, except to the extent that the same would not
be reasonably expected to give rise to a Material Adverse Effect.
9. The Issuer has not distributed and, prior to the Effective Date, will not distribute any written material in connection with the offer of the 2019 VMTP Shares other than copies
of the Statement, the Purchase Agreement and the Registration Rights Agreement.
10. The Issuer has not taken, directly or indirectly, any action designed to or that would constitute or that reasonably would be expected to cause or result in stabilization or
manipulation of the price of any security of the Issuer to facilitate the sale of the 2019 VMTP Shares, and the Issuer is not aware of any such action taken or to be taken by any affiliates of the Issuer.
11. Each of the Advisory Agreement, dated December 1, 2002, between the Issuer and the Investment Adviser, the Custody Agreement, dated as of June 7, 2005, among various registered
investment companies advised by the Investment Adviser and The Bank of New York, as amended; and the Amendment dated December 22, 2011 to the Transfer Agency and Service Agreement dated December 19, 2002 between the Issuer and Computershare Trust
Company, N.A. and Computershare Inc., complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations and the Advisory Agreement has been approved in accordance with Sections 15(a) and (c) of the
1940 Act.
12. Other than those taxes and fees that customary in connection with the sale of securities, there are no transfer taxes or other similar fees or charges under federal law or the
laws of any state, or any political subdivision thereof, required to be paid in connection with the execution and delivery of this Agreement or the issuance by the Issuer of the 2019 VMTP Shares.
13. The Issuer has adopted and implemented written policies and procedures reasonably designed to prevent violation of the Federal Securities Laws (as that term is defined in Rule
38a-1 under the 0000 Xxx) by the Issuer, including policies and procedures that provide oversight of compliance by each investment adviser and transfer agent of the Issuer.
14. Assuming compliance by each Purchaser of its representations, warranties, covenants and agreements in this Agreement, the offer and sale of the 2019 VMTP Shares has been
conducted in a manner by the Issuer and its agents so as not to violate any applicable federal securities laws, including the 1940 Act and the 1940 Act Rules and Regulations, the Investment Advisers Act of 1940, as amended, and the rules and
regulations thereunder, or any applicable New York state laws.
EXHIBIT F
CAPITALIZATION
The following table sets forth the Preferred Shares capitalization of the Fund as of October 18, 2019 after giving effect to the transactions
contemplated by this Agreement and the consummation of the Fund’s tender offer for its Auction Market Preferred Shares.
Variable Rate Municipal Term Preferred Shares (VMTP), Series 2019,
liquidation preference $50,000 per share (2,272 shares outstanding) $113,600,000
Auction Market Preferred Shares (AMPS),
liquidation preference $25,000 per share (47 shares outstanding) $1,175,000
______________________________________________________________________________
Total Preferred Shares Capitalization $114,775,000
