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EXHIBIT 7(a)
Shares
MuniYield New Jersey Fund, Inc.
(a Maryland corporation)
Common Stock
(Par Value $0.10 Per Share)
PURCHASE AGREEMENT
March __, 1992
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
Xxxxxxx Xxxxx World Headquarters
World Xxxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Dear Ladies and Gentlemen:
MuniYield New Jersey Fund, Inc., a Maryland corporation (the
"Fund"), and Fund Asset Management, Inc., a Delaware corporation (the
"Adviser"), each confirms its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the "Underwriter"), with respect to
the sale by the Fund and the purchase by the Underwriter of _________ shares of
common stock, par value $.10 per share, of the Fund (the "Common Stock") and,
with respect to the grant by the Fund to the Underwriter of the option
described in Section 2 hereof to purchase all or any part of _________
additional shares of Common Stock to cover overallotments. The aforesaid
_________ shares (the "Initial Shares"), together with all or any part of the
_________ additional shares of Common Stock subject to the option described in
Section 2 hereof (the "Option Shares"), are collectively hereinafter called the
"Shares".
Prior to the purchase and public offering of the Shares by the
Underwriter, the Fund and the Underwriter shall enter into an agreement
substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication between the Fund and the Underwriter and shall
specify such applicable information as is indicated in Exhibit A hereto. The
offering of the Shares will be governed by this Agreement, as supplemented by
the Pricing Agreement. From and after the date of the execution and delivery of
the Pricing Agreement, this Agreement shall be deemed to incorporate the
Pricing Agreement.
The Fund has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form N-2 (No. 33-___) and a
related preliminary prospectus for the registration of the Shares under the
Securities Act of 1933, as amended (the "1933 Act"), and a notification on Form
N-8A of registration of the Fund as an investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"), and the rules and regulations
of the Commission under the 1940 Act (together with the rules and regulations
under the 1933 Act,
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the "Rules and Regulations") and has filed such amendments to such registration
statement on Form N-2, if any, and such amended preliminary prospectuses as may
have been required to the date hereof. The Fund will prepare and file such
additional amendments thereto and such amended prospectuses as may hereafter be
required. Such registration statement (as amended, if applicable) and the
prospectus constituting a part thereof (including in each case the information,
if any, deemed to be part thereof pursuant to Rule 430A(b) of the Rules and
Regulations), as from time to time amended or supplemented pursuant to the 1933
Act, are hereinafter referred to as the "Registration Statement" and the
"Prospectus", respectively, except that if any revised prospectus shall be
provided to the Underwriter by the Fund for use in connection with the offering
of the Shares which differs from the Prospectus on file at the Commission at
the time the Registration Statement becomes effective (whether such revised
prospectus is required to be filed by the Fund pursuant to Rule 497(b) or Rule
497(h) of the Rules and Regulations), the term "Prospectus" shall refer to each
such revised prospectus from and after the time it is first provided to the
Underwriter for such use.
The Fund understands that the Underwriter proposes to make a public
offering of the Shares as soon as the Underwriter deems advisable after the
Registration Statement becomes effective and the Pricing Agreement has been
executed and delivered.
SECTION 1. Representations and Warranties. (a) The Fund and the
Adviser each severally represents and warrants to the Underwriter as of the
date hereof and as of the date of the Pricing Agreement (such later date being
hereinafter referred to as the "Representation Date") as follows:
(i) At the time the Registration Statement becomes
effective and at the Representation Date, the Registration Statement
will comply in all material respects with the requirements of the 1933
Act, the 1940 Act and the Rules and Regulations and will not contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading. At the time the Registration Statement becomes
effective, at the Representation Date and at Closing Time referred to
in Section 2, the Prospectus (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriter by the Fund for
use in connection with the offering of the Shares which differs from
the Prospectus on file with the Commission at the time the
Registration Statement becomes effective, in which case at the time
such prospectus is first provided to the Underwriter for such use)
will not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the Fund
in writing by the Underwriter expressly for use in the Registration
Statement or Prospectus.
(ii) The accountants who certified the statement of assets
and liabilities included in the Registration Statement are independent
public accountants as required by the 1933 Act and the Rules and
Regulations.
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(iii) The statement of assets and liabilities included in the
Registration Statement presents fairly the financial position of the
Fund as at the date indicated and said statement has been prepared in
conformity with generally accepted accounted principles.
(iv) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, of the Fund, or in
the earnings, business affairs or business prospects of the Fund,
whether or not arising in the ordinary course of business, (B) there
have been no transactions entered into by the Fund which are material
to the Fund other than those in the ordinary course of business, and
(C) there has been no dividend or distribution of any kind declared,
paid or made by the Fund on any class of its capital stock.
(v) The Fund has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Maryland with corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement; the Fund is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required; and the Fund has
no subsidiaries.
(vi) The Fund is registered with the Commission under the
1940 Act as a closed-end non-diversified management investment
company, and no order of suspension or revocation of such registration
has been issued or proceedings therefor initiated or threatened by the
Commission.
(vii) The authorized, issued and outstanding capital stock of
the Fund is as set forth in the Prospectus under the caption
"Description of Capital Stock"; the Shares have been duly authorized
for issuance and sale to the Underwriter pursuant to this Agreement
and, when issued and delivered by the Fund pursuant to this Agreement
against payment of the consideration set forth in the Pricing
Agreement, will be validly issued and fully paid and nonassessable;
the Shares conform in all material respects to all statements relating
thereto contained in the Registration Statement; and the issuance of
the Shares is not subject to preemptive rights.
(viii) The Fund is not in violation of its articles of
incorporation, as amended (the "Charter") or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which it
is a party or by which it or its properties may be bound; and the
execution and delivery of this Agreement, the Pricing Agreement and
the Investment Advisory Agreement and the Custodial Agreement referred
to in the Registration Statement (as used herein, the "Advisory
Agreement" and the "Custody Agreement", respectively) and the
consummation of the transactions contemplated herein and therein have
been duly authorized by all necessary corporate action and will not
conflict with or constitute a breach of, or default under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Fund pursuant to any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which the Fund is
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a party or by which it may be bound or to which any of the property or
assets of the Fund is subject, nor will such action result in any
violation of the provisions of the Charter or by-laws, as amended, of
the Fund (the "By-Laws") or, to the best knowledge of the Fund and the
Adviser, any law, administrative regulation or administrative or court
decree; and no consent, approval, authorization or order of any court
or governmental authority or agency is required for consummation by
the Fund of the transactions contemplated by this Agreement, the
Pricing Agreement, the Advisory Agreement and the Custody Agreement,
except such as has been obtained under the 1940 Act or as may be
required under the 1933 Act, state securities or Blue Sky laws or
foreign securities laws in connection with the purchase and
distribution of the Shares by the Underwriter.
(ix) The Fund owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to
operate its properties and to carry on its businesses as contemplated
in the Prospectus.
(x) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Fund, threatened against or
affecting, the Fund, which might result in any material adverse change
in the condition, financial or otherwise, business affairs or business
prospects of the Fund, or might materially and adversely affect the
properties or assets of the Fund; and there are no material contracts
or documents of the Fund which are required to be filed as exhibits to
the Registration Statement by the 1933 Act, the 1940 Act or by the
Rules and Regulations which have not been so filed.
(xi) The Fund owns or possesses, or can acquire on
reasonable terms, adequate trademarks, service marks and trade names
necessary to conduct its business as described in the Registration
Statement, and the Fund has not received any notice of infringement of
or conflict with asserted rights of others with respect to any
trademarks, service marks or trade names which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially adversely affect the conduct of the
business, operations, financial condition or income of the Fund.
(b) The Adviser represents and warrants to the Underwriter as
of the date hereof and as of the Representation Date as follows:
(i) The Adviser has been duly incorporated as a corporation
under the laws of the State of Delaware with corporate power and
authority to conduct its business as described in the Prospectus.
(ii) The Adviser is duly registered as an investment adviser
under the Investment Advisers Act of 1940, as amended (the "Advisers
Act"), and is not prohibited by the Advisers Act or the 1940 Act, or
the rules and regulations under such acts, from acting under the
Advisory Agreement for the Fund as contemplated by the Prospectus.
(iii) This Agreement has been duly authorized, executed and
delivered by the Adviser; the Advisory Agreement has been duly
authorized, executed and delivered by
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the Adviser and constitutes a valid and binding obligation of the
Adviser, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization or other laws
relating to or affecting creditors' rights and to general equity
principles; and neither the execution and delivery of this Agreement,
or the Advisory Agreement nor the performance by the Adviser of its
obligations hereunder or thereunder will conflict with, or result in a
breach of any of the terms and provisions of, or constitute, with or
without the giving of notice or lapse of time or both, a default
under, any agreement or instrument to which the Adviser is a party or
by which it is bound, or any law, order, rule or regulation applicable
to it of any jurisdiction, court, federal or state regulatory body,
administrative agency or other governmental body, stock exchange or
securities association having jurisdiction over the Adviser or its
respective properties or operations.
(iv) The Adviser has the financial resources available to it
necessary for the performance of its services and obligations as
contemplated in the Prospectus.
(v) Any advertisement approved by the Adviser for use in
the public offering of the Shares pursuant to Rule 482 under the Rules
and Regulations (an "Omitting Prospectus") complies with the
requirements of such Rule 482.
(c) Any certificate signed by any officer of the Fund or the
Adviser and delivered to the Underwriter shall be deemed a
representation and warranty by the Fund or the Adviser, as the case
may be, to the Underwriter, as to the matters covered thereby.
SECTION 2. Sale and Delivery to the Underwriter; Closing. On the
basis of the representations and warranties herein contained and subject to the
terms and conditions herein set forth, the Fund agrees to sell the Initial
Shares to the Underwriter, and the Underwriter agrees to purchase the Initial
Shares from the Fund, at the price per share set forth in the Pricing
Agreement.
(a) If the Fund has elected not to rely upon Rule 430A under
the Rules and Regulations, the initial public offering prices and the
purchase price per share to be paid by the Underwriter for the Shares
has been determined and set forth in the Pricing Agreement, dated the
date hereof, and an amendment to the Registration Statement and the
Prospectus will be filed before the Registration Statement becomes
effective.
(b) If the Fund has elected to rely upon Rule 430A under the
Rules and Regulations, the purchase price per share to be paid by the
Underwriter for the Shares shall be an amount equal to the applicable
initial public offering price, less an amount per share to be
determined by agreement between the Underwriter and the Fund. The
applicable initial public offering price per share shall be a fixed
price based upon the number of Shares purchased in a single
transaction to be determined by agreement between the Underwriter and
the Fund. The initial public offering prices and the purchase price,
when so determined, shall be set forth in the Pricing Agreement. In
the event that such prices have not been agreed upon and the Pricing
Agreement has not been executed and delivered by all parties thereto
by the close of business on the fourth business day following the date
of this Agreement, this Agreement shall terminate forthwith, without
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liability of any party to any other party, except as provided in
Section 4, unless otherwise agreed to by the Fund, the Adviser and the
Underwriter.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Fund
hereby grants an option to the Underwriter to purchase all or any part of the
Option Shares at the price per share set forth above. The option hereby granted
will expire 45 days after the date hereof (or, if the Fund has elected to rely
upon Rule 430A under the Rules and Regulations, 45 days after the execution of
the Pricing Agreement) and may be exercised only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Shares upon notice by the Underwriter to the Fund
setting forth the number of Option Shares as to which the Underwriter is then
exercising the option and the time, date and place of payment and delivery for
such Option Shares. Any such time and date of delivery (a "Date of Delivery")
shall be determined by the Underwriter but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to
Closing Time, as hereinafter defined, unless otherwise agreed upon by the
Underwriter and the Fund.
Payment of the purchase price for, and delivery of certificates for,
the Initial Shares shall be made at the office of Xxxxx & Xxxx, Xxx Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, or at such other place as shall be
agreed upon by the Underwriter and the Fund, at 10:00 A.M. on the fifth
business day (unless postponed in accordance with the provisions of Section 10)
following the date the Registration Statement becomes effective (or, if the
Fund has elected to rely upon Rule 430A under the Rules and Regulations, the
fifth business day after execution of the Pricing Agreement), or such other
time not later than ten business days after such date as shall be agreed upon
by the Underwriter and the Fund (such time and date of payment and delivery
being herein called "Closing Time"). In addition, in the event that any or all
of the Option Shares are purchased by the Underwriter, payment of the purchase
price for, and delivery of certificates for, such Option Shares shall be made
at the above-mentioned office of Xxxxx & Wood, or at such other place as shall
be mutually agreed upon by the Fund and the Underwriter, on each Date of
Delivery as specified in the notice from the Underwriter to the Fund. Payment
shall be made to the Fund by check or checks drawn in New York Clearing House
or similar next day funds and payable to the order of the Fund, against
delivery to the Underwriter of certificates for the Shares to be purchased by
it. Certificates for the Initial Shares and Option Shares shall be in such
denominations and registered in such names as the Underwriter may request in
writing at least two business days before Closing Time or the Date of Delivery,
as the case may be. The certificates for the Initial Shares and the Option
Shares will be made available by the Fund for examination and packaging by the
Underwriter not later than 10:00 A.M. on the last business day prior to Closing
Time or the Date of Delivery, as the case may be.
SECTION 3. Covenants of the Fund. The Fund covenants with the
Underwriter as follows:
(a) The Fund will use its best efforts to cause the
Registration Statement to become effective under the 1933 Act, and
will advise the Underwriter promptly as to the time at which the
Registration Statement and any amendments thereto (including any
post-effective amendment) becomes so effective and, if required, to
cause the issuance of
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any orders exempting the Fund from any provisions of the 1940 Act and
will advise the Underwriter promptly as to the time at which any such
orders are granted.
(b) The Fund will notify the Underwriter immediately, and
confirm the notice in writing, (i) of the effectiveness of the
Registration Statement and any amendment thereto (including any
post-effective amendment), (ii) of the receipt of any comments from
the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for
that purpose, and (v) of the issuance by the Commission of an order of
suspension or revocation of the notification on Form N-8A of
registration of the Fund as an Investment Company under the 1940 Act
or the initiation of any proceeding for that purpose. The Fund will
make every reasonable effort to prevent the issuance of any stop order
described in subsection (iv) hereunder or any order of suspension or
revocation described in subsection (v) hereunder and, if any such stop
order or order of suspension or revocation is issued, to obtain the
lifting thereof at the earliest possible moment.
(c) The Fund will give the Underwriter notice of its intention
to file any amendment to the Registration Statement (including any
post-effective amendment) or any amendment or supplement to the
Prospectus (including any revised prospectus which the Fund proposes
for use by the Underwriter in connection with the offering of the
Shares, which differs from the prospectus on file at the Commission at
the time the Registration Statement becomes effective, whether such
revised prospectus is required to be filed pursuant to Rule 497(b) or
Rule 497(h) of the Rules and Regulations), whether pursuant to the
1940 Act, the 1933 Act, or otherwise, and will furnish the Underwriter
with copies of any such amendment or supplement a reasonable amount of
time prior to such proposed filing or use, as the case may be, and
will not file any such amendment or supplement to which the
Underwriter shall reasonably object.
(d) The Fund will deliver to the Underwriter, as soon as
practicable, two signed copies of the notification of registration and
registration statement as originally filed and of each amendment
thereto, in each case with two sets of the exhibits filed therewith,
and will also deliver to the Underwriter a conformed copy of the
registration statement as originally filed and of each amendment
thereto (but without exhibits to the registration statement or any
such amendment) for the Underwriter.
(e) The Fund will furnish to the Underwriter, from time to
time during the period when the Prospectus is required to be delivered
under the 1933 Act, such number of copies of the Prospectus (as
amended or supplemented) as the Underwriter may reasonably request for
the purposes contemplated by the 1933 Act or the Rules and
Regulations.
(f) If any event shall occur as a result of which it is
necessary, in the opinion of counsel for the Underwriter, to amend or
supplement the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, the Fund will forthwith amend or
supplement the Prospectus by
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preparing and furnishing to the Underwriter a reasonable number of
copies of an amendment or amendments of or a supplement or supplements
to, the Prospectus in form and substance satisfactory to counsel for
the Underwriter, so that, as so amended or supplemented, the
Prospectus will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the
time the Prospectus is delivered to a purchaser, not misleading.
(g) The Fund will endeavor, in cooperation with the
Underwriter, to qualify the Shares for offering and sale under the
applicable securities laws of such states and other jurisdictions of
the United States as the Underwriter may designate, and will maintain
such qualifications in effect for a period of not less than one year
after the date hereof. The Fund will file such statements and reports
as may be required by the laws of each jurisdiction in which the
Shares have been qualified as above provided.
(h) The Fund will make generally available to its security
holders as soon as practicable, but no later than 60 days after the
close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the Rules and
Regulations) covering a twelve-month period beginning not later than
the first day of the Funds's fiscal quarter next following the
"effective" date (as defined in said Rule 158) of the Registration
Statement.
(i) Between the date of this Agreement and the termination of
any trading restrictions or Closing Time, whichever is later, the Fund
will not, without your prior consent, offer or sell, or enter into any
agreement to sell, any equity or equity related securities of the Fund
other than the Shares and shares of Common Stock issued in
reinvestment of dividends or distributions.
(j) If , at the time that the Registration Statement becomes
effective, any information shall have been omitted therefrom in
reliance upon Rule 430A of the Rules and Regulations, then immediately
following the execution of the Pricing Agreement, the Fund will
prepare, and file or transmit for filing with the Commission in
accordance with such Rule 430A and Rule 497(h) of the Rules and
Regulations, copies of an amended Prospectus, or, if required by such
Rule 430A, a post-effective amendment to the Registration Statement
(including an amended Prospectus), containing all information so
omitted.
(k) The Fund will use its best efforts to effect the listing
of the Shares on the New York Stock Exchange so that trading on such
Exchange will begin no later than three weeks from the date of the
Prospectus.
SECTION 4. Payment of Expenses. The Fund will pay all expenses
incident to the performance of its obligations under this Agreement, including,
but not limited to, expenses relating to (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the printing of this Agreement and the Pricing Agreement, (iii) the
preparation, issuance and delivery of the certificates for the Shares to the
Underwriter, (iv) the fees and disbursements of the Fund's counsel and
accountants, (v) the qualification of the Shares
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under securities laws in accordance with the provisions of Section 3(g) of this
Agreement, including filing fees and any reasonable fees or disbursements of
counsel for the Underwriter in connection therewith and in connection with the
preparation of the Blue Sky Survey, (vi) the printing and delivery to the
Underwriter of copies of the Registration Statement as originally filed and of
each amendment thereto, of the preliminary prospectus, and of the Prospectus
and any amendments or supplements thereto, (vii) the printing and delivery to
the Underwriter of copies of the Blue Sky Survey, (viii) the fees and expenses
incurred with respect to the filing with the National Association of Securities
Dealers, Inc. and (ix) the fees and expenses incurred with respect to the
listing of the Shares on the New York Stock Exchange.
If this Agreement is terminated by the Underwriter in accordance with
the provisions of Section 5 or Section 9 (a) (i) , the Fund or the Adviser
shall reimburse the Underwriter for all of their reasonable out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriter. In the event the transactions contemplated hereunder are not
consummated, the Adviser agrees to pay all of the costs and expenses set forth
in the first paragraph of this Section 4 which the Fund would have paid if such
transactions were consummated.
SECTION 5. Conditions of Underwriter's Obligations. The
obligations of the Underwriter hereunder are subject to the accuracy of the
representations and warranties of the Fund and the Adviser herein contained, to
the performance by the Fund and the Adviser of their respective obligations
hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M., New York City time, on the date of this
Agreement, or at a later time and date not later, however, than 5:30
P.M. on the first business day following the date hereof, or at such
later time and date as may be approved by the Underwriter, and at
Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. If the
Fund has elected to rely upon Rule 430A of the Rules and Regulations,
the prices of the Shares and any price-related information previously
omitted from the effective Registration Statement pursuant to such
Rule 430A shall have been transmitted to the Commission for filing
pursuant to Rule 497 (h) of the Rules and Regulations within the
prescribed time period, and prior to Closing Time the Fund shall have
provided evidence satisfactory to the Underwriter of such timely
filing, or a post-effective amendment providing such information shall
have been promptly filed and declared effective in accordance with the
requirements of Rule 430A of the Rules and Regulations.
(b) At Closing Time, the Underwriter shall have received:
(1) The favorable opinion, dated as of Closing Time,
of Xxxxx & Xxxx, counsel for the Fund and the Underwriter, to
the effect that:
(i) The Fund has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of the State of Maryland.
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(ii) The Fund has corporate power and authority to
own, lease and operate its properties and conduct its
business as described in the Registration Statement and the
Prospectus.
(iii) The Fund is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required.
(iv) The Shares have been duly authorized for
issuance and sale to the Underwriter pursuant to this
Agreement and, when issued and delivered by the Fund
pursuant to this Agreement against payment of the
consideration set forth in the Pricing Agreement, will be
validly issued and fully paid and nonassessable; the
issuance of the Shares is not subject to preemptive rights;
and the authorized capital stock conforms as to legal
matters in all material respects to the description thereof
in the Registration Statement under the caption
"Description of Capital Stock".
(v) This Agreement and the Pricing Agreement have
each been duly authorized, executed and delivered by the
Fund and each complies with all applicable provisions of
the 1940 Act.
(vi) The Registration Statement is effective under
the 1933 Act and, to the best of their knowledge and
information, no stop order suspending the effectiveness of
the Registration Statement has been issued under the 1933
Act or proceedings therefor initiated or threatened by the
Commission.
(vii) At the time the Registration Statement became
effective and at the Representation Date, the Registration
Statement (other than the financial statements included
therein, as to which no opinion need be rendered) complied
as to form in all material respects with the requirements
of the 1933 Act and the 1940 Act and the Rules and
Regulations.
(viii) To the best of their knowledge and
information, there are no legal or governmental proceedings
pending or threatened against the Fund which are required
to be disclosed in the Registration Statement, other than
those disclosed therein.
(ix) To the best of their knowledge and
information, there are no contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments of the
Fund required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed
as exhibits thereto, the descriptions thereof are correct
in
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all material respects, references thereto are correct, and
no default exists in the due performance or observance of
any material obligation, agreement, covenant or condition
contained in any contract, indenture, loan agreement, note
or lease so described, referred to or filed.
(x) No consent, approval, authorization or order
of any court or governmental authority or agency is
required in connection with the sale of the Shares to the
Underwriter, except such as has been obtained under the
1933 Act, the 1940 Act or the Rules and Regulations or such
as may be required under state or foreign securities laws;
and to the best of their knowledge and information, the
execution and delivery of this Agreement, the Pricing
Agreement, the Advisory Agreement and the Custody Agreement
and the consummation of the transactions contemplated
herein and therein will not conflict with or constitute a
breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Fund pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Fund is a party or by which it may
be bound or to which any of the property or assets of the
Fund is subject, nor will such action result in any
violation of the provisions of the Charter or By-Laws of
the Fund, or any law or administrative regulation, or, to
the best of their knowledge and information, administrative
or court decree.
(xi) The Advisory Agreement and the Custody
Agreement have each been duly authorized and approved by
the Fund and comply as to form in all material respects
with all applicable provisions of the 1940 Act, and both
have been duly executed by the Fund.
(xii) The Fund is registered with the Commission
under the 1940 Act as a closed-end non-diversified
management investment company, and all required action has
been taken by the Fund under the 1933 Act, the 1940 Act and
the Rules and Regulations to make the public offering and
consummate the sale of the Shares pursuant to this
Agreement; the provisions of the Charter and By-Laws of the
Fund comply as to form in all material respects with the
requirements of the 1940 Act; and, to the best of their
knowledge and information, no order of suspension or
revocation of such registration under the 1940 Act,
pursuant to Section 8 (e) of the 1940 Act, has been issued
or proceedings therefor initiated or threatened by the
Commission.
(xiii) The information in the Prospectus under the
caption "Taxes", to the extent that it constitutes matters
of law or legal
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conclusions, has been reviewed by them and is correct in
all material respects.
(2) The favorable opinion, dated as of Closing Time,
of Xxxxxx X. Xxxxxxxx, Esq., General Counsel to the Adviser,
in form and substance satisfactory to counsel for the
Underwriter, to the effect that:
(i) The Adviser has been duly organized as a
corporation under the laws of the State of Delaware with
corporate power and authority to conduct its business as
described in the Registration Statement and the Prospectus.
(ii) The Adviser is duly registered as an
investment adviser under the Advisers Act and is not
prohibited by the Advisers Act or the 1940 Act, or the
rules and regulations under such Acts, from acting under
the Advisory Agreement for the Fund as contemplated by the
Prospectus.
(iii) This Agreement and the Advisory Agreement
have been duly authorized, executed and delivered by the
Adviser, and the Advisory Agreement constitutes a valid and
binding obligation of the Adviser, enforceable in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization or other laws
relating to or affecting creditors' rights and to general
equity principles; and, to the best of his knowledge and
information, neither the execution and delivery of this
Agreement or the Advisory Agreement nor the performance by
the Adviser of its obligations hereunder or thereunder will
conflict with, or result in a breach of, any of the terms
and provisions of, or constitute, with or without giving
notice or lapse of time or both, a default under, any
agreement or instrument to which the Adviser is a party or
by which the Adviser is bound, or any law, order, rule or
regulation applicable to the Adviser of any jurisdiction,
court, federal or state regulatory body, administrative
agency or other governmental body, stock exchange or
securities association having jurisdiction over the Adviser
or its properties or operations.
(iv) To the best of his knowledge and information,
the description of the Adviser in the Registration
Statement and the Prospectus does not contain any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading.
(3) In giving their opinion required by sub-section
(b)(1) of this Section, Xxxxx & Xxxx shall additionally state
that nothing has come to their attention that would lead them
to believe that the Registration Statement (other than the
financial statements included therein, as to which no opinion
need be rendered), at
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the time it became effective or at the Representation Date,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Prospectus (other than the financial statement
included therein, as to which no opinion need be rendered), at
the Representation Date (unless the term "Prospectus" refers
to a prospectus which has been provided to the Underwriter by
the Fund for use in connection with the offering of the Shares
which differs from the Prospectus on file at the Commission at
the time the Registration Statement becomes effective, in
which case at the time they are first provided to the
Underwriter for such use) or at Closing Time, included an
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading. In giving their opinion, Xxxxx &
Wood may rely as to matters involving the laws of the State of
Maryland upon the opinion of Xxxxxxx, Xxxxxxx & Xxxxxx.
Xxxxxxx, Baetjer & Xxxxxx and Xxxxx & Xxxx may rely, as to
matters of fact, upon certificates and written statements of
officers and employees of and accountants for the Fund and the
Adviser and of public officials.
(c) At Closing Time, (i) the Registration Statement and the
Prospectus shall contain all statements which are required to be
stated therein in accordance with the 1933 Act, the 1940 Act and the
Rules and Regulations and in all material respects shall conform to
the requirements of the 1933 Act, the 1940 Act and the Rules and
Regulations and neither the Registration Statement nor the Prospectus
shall contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, and no action, suit or
proceeding at law or in equity shall be pending or, to the knowledge
of the Fund or the Adviser, threatened against the Fund or the Adviser
which would be required to be set forth in the Prospectus other than
as set forth therein, (ii) there shall not have been, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change in the
condition, financial or otherwise, of the Fund or in its earnings,
business affairs or business prospects, whether or not arising in the
ordinary course of business, from that set forth in the Registration
Statement and Prospectus, (iii) the Adviser shall have the financial
resources available to it necessary for the performance of its
services and obligations as contemplated in the Registration Statement
and the Prospectus and (iv) no proceedings shall be pending or, to the
knowledge of the Fund or the Adviser, threatened against the Fund or
the Adviser before or by any Federal, state or other commission, board
or administrative agency wherein an unfavorable decision, ruling or
finding would materially and adversely affect the business, property,
financial condition or income of either the Fund or the Adviser other
than as set forth in the Registration Statement and the Prospectus;
and the Underwriter shall have received, at Closing Time, a
certificate of the President or Treasurer of the Fund and of the
President or a Vice President of the Adviser dated as of Closing Time,
evidencing compliance with the appropriate provisions of this
subsection (c).
(d) At Closing Time, the Underwriter shall have received
certificates, dated as of Closing Time, (i) of the President or
Treasurer of the Fund to the effect that the representations and
warranties of the Fund contained in Section 1 (a) are true and correct
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with the same force and effect as though expressly made at and as of
Closing Time and, (ii) of the President or a Vice President of the
Adviser to the effect that the representations and warranties of the
Adviser contained in Sections 1(a) and (b) are true and correct with
the same force and effect as though expressly made at and as of
Closing Time.
(e) At the time of execution of this Agreement, the
Underwriter shall have received from _____________ a letter, dated
such date in form and substance satisfactory to the Underwriter, to
the effect that:
(i) they are independent accountants with respect to the
Fund within the meaning of the 1933 Act and the Rules and Regulations;
(ii) in their opinion, the statement of assets and
liabilities examined by them and included in the Registration
Statement complies as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1940 Act
and the Rules and Regulations; and
(iii) they have performed specified procedures, not
constituting an audit, including a reading of the latest available
interim financial statements of the Fund, a reading of the minute
books of the Fund, inquiries of officials of the Fund responsible for
financial accounting matters and such other inquiries and procedures
as may be specified in such letter, and on the basis of such
inquiries and procedures nothing came to their attention that caused
them to believe that at the date of the latest available statement of
assets and liabilities read by such accountants, or at a subsequent
specified date not more than five days prior to the date of this
Agreement, there was any change in the capital stock or net assets of
the Fund as compared with amounts shown on the statement of net assets
included in the Prospectus.
(f) At Closing Time, the Underwriter shall have received from
____________ a letter, dated as of Closing Time, to the effect that
they reaffirm the statements made in the letter furnished pursuant to
subsection (e) of this Section, except that the "specified date"
referred to shall be a date not more than five days prior to Closing
Time.
(g) At Closing Time, all proceedings taken by the Fund and the
Adviser in connection with the organization and registration of the
Fund under the 1940 Act and the issuance and sale of the Shares as
herein and therein contemplated shall be satisfactory in form and
substance to the Underwriter.
(h) In the event the Underwriter exercises its option provided
in Section 2 hereof to purchase all or any portion of the Option
Shares, the representations and warranties of the Fund and the Adviser
contained herein and the statements in any certificate furnished by
the Fund and the Adviser hereunder shall be true and correct as of
each Date of Delivery, and the Underwriter shall have received:
(1) Certificates, dated the Date of Delivery, of the
President or Treasurer of the Fund and of the President or a
Vice President of the Adviser confirming that the information
contained in the certificate delivered by each of them at
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15
Closing Time pursuant to Sections 5(c) and (d), as the case
may be, remains true as of such Date of Delivery.
(2) The favorable opinion of Xxxxx & Wood, counsel
for the Fund and Xxxxxx X. Xxxxxxxx, Esq., General Counsel to
the Adviser, each in form and substance satisfactory to the
Underwriter, dated such Date of Delivery, relating to the
Option Shares and otherwise to the same effect as the opinions
required by Sections 5(b)(1) and (2), respectively.
(3) A letter from ____________ in form and substance
satisfactory to the Underwriter and dated such Date of
Delivery, substantially the same in scope and substance as the
letter furnished to the Underwriter pursuant to Section 5(e),
except that the "specified date" in the letter furnished
pursuant to this Section 5(h)(3) shall be a date not more than
five days prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriter by notice to the Fund at any time at or prior to
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 4.
SECTION 6. Indemnification. (a) The Fund and the Adviser,
jointly and severally, agree to indemnify and hold harmless the Underwriter and
each person, if any, who controls the Underwriter within the meaning of Section
15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant
to Rule 430A of the Rules and Regulations, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever as incurred to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the indemnifying party; and
(iii) against any and all expense whatsoever (including the
fees and disbursements of counsel chosen by the Underwriter)
reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding
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by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Fund by the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) The Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Fund and the Adviser, their respective
directors, each of the Fund's officers who signed the Registration
Statement, and each person, if any, who controls the Fund or the
Adviser within the meaning of Section 15 of the 1933 Act, against any
and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred,
but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Fund by the
Underwriter expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
(c) In addition to the foregoing indemnification, the Adviser
also agrees to indemnify and hold harmless the Underwriter and each
person, if any, who controls the Underwriter within the meaning of
Section 15 of the 1933 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, with respect to any Omitting
Prospectus or any advertising materials approved by the Adviser for
use in connection with the public offering of the Shares.
(d) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of any such action.
In no event shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
SECTION 7. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in Section 6 is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the Fund,
the Adviser and the Underwriter shall contribute to the aggregate losses,
liabilities,
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claims, damages and expenses of the nature contemplated by said indemnity
agreement as incurred by the Fund, the Adviser and the Underwriter, as
incurred, in such proportion that the Underwriter is responsible for that
portion represented by the percentage that the aggregate underwriting
compensation payable pursuant to Section 2 hereof bears to the aggregate
initial public offering price of the Shares sold under this Agreement and the
Fund and the Adviser are responsible for the balance; provided, however, that
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section, each person, if any, who controls the Underwriter within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Underwriter, and each director of the Fund and the Adviser, respectively, each
officer of the Fund who signed the Registration Statement, and each person, if
any, who controls the Fund or the Adviser within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as the Fund and the
Adviser, respectively.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the Pricing Agreement, or contained in certificates of officers of
the Fund or the Adviser submitted pursuant hereto, shall remain operative and
in full force and effect, regardless of any investigation made by or on behalf
of the Underwriter or controlling person, or by or on behalf of the Fund or the
Adviser and shall survive delivery of the Shares to the Underwriter.
SECTION 9. Termination of Agreement. (a) The Underwriter, by
notice to the Fund, may terminate this Agreement at any time at or prior to
Closing Time (i) if there has been, since the date of this Agreement or since
the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Fund or the Adviser, whether or not arising in the ordinary course of business,
or (ii) if there has occurred any material adverse change in the financial
markets in the United States or elsewhere or any outbreak of hostilities or
other calamity or crisis or any escalation of existing hostilities the effect
of which is such as to make it, in the Underwriter's judgment, impracticable to
market the Shares or enforce contracts for the sale of the Shares, or (iii) if
trading in the Common Stock has been suspended by the Commission or if trading
generally on either the American Stock Exchange or the New York Stock Exchange
has been suspended, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices for securities have been required, by either of
said exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by Federal or New York
authorities.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other
party except as provided in Section 4.
SECTION 10. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of written telecommunication.
Notices to the Underwriter shall be directed to Xxxxxxx Xxxxx World
Headquarters, Xxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxx, Director; notices to the Fund or the Adviser shall be
directed to each of
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them at 000 Xxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxxx
Xxxxxx, President.
SECTION 11. Parties. This Agreement and the Pricing Agreement
shall inure to the benefit of and be binding upon the Underwriter, the Fund,
the Adviser and their respective successors. Nothing expressed or mentioned in
this Agreement or the Pricing Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and the Pricing Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and thereto and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm
or corporation. No purchaser of Shares from the Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 12. Governing Law and Time. This Agreement and the
Pricing Agreement shall be governed by the laws of the State of New York
applicable to agreements made and to be performed in said State. Specified
times of day refer to New York City time.
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If the foregoing is in accordance with your understanding of our
Agreement, please sign and return to us a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a single binding agreement
among the Underwriter, the Fund and the Adviser in accordance with its terms.
Very truly yours,
MUNIYIELD NEW JERSEY FUND, INC.
By:
--------------------------------------------
(Authorized Officer)
FUND ASSET MANAGEMENT, INC.
By:
--------------------------------------------
(Authorized Officer)
Confirmed and Accepted, as of the
date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
--------------------------------------------
Vice President
Investment Banking Group
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Exhibit A
Shares
MuniYield New Jersey Fund, Inc.
(a Maryland corporation)
Common Stock
(Par Value $.10 Per Share)
PRICING AGREEMENT
March __, 1992.
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
Xxxxxxx Xxxxx World Headquarters
World Xxxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Dear Ladies and Gentlemen:
Reference is made to the Purchase Agreement, dated March __, 1992 (the
"Purchase Agreement"), relating to the purchase by Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, (the "Underwriter"), of the above
shares of Common Stock, par value $.10 per share (the "Initial Shares"), of
MuniYield New Jersey Fund, Inc. (the "Fund") and relating to the option granted
to the Underwriter to purchase up to an additional _________ shares of Common
Stock, par value $.10 per share, of the Fund to cover over-allotments in
connection with the sale of the Initial Shares (the "Option Shares"). The
Initial Shares and all or any part of the Option Shares are collectively herein
referred to as the "Shares".
Pursuant to Section 2 of the Purchase Agreement, the Fund agrees with
the Underwriter as follows:
1. The applicable initial public offering price per
share for the Shares, determined as provided in said Section 2, shall
be as follows:
(a) $_____ for purchases in single transactions of less
than _________ Shares;
(b) _________ for purchases in single transactions of
_________ or more Shares but less than _________
Shares; and
(c) _________ for purchases in single transactions of
_________ or more Shares.
2. The purchase price per share for the Shares to be
paid by the Underwriter shall be _________ being an amount equal to
the applicable initial public offering price set forth above less (i)
_________ per share for purchases, in single transactions of less
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than _________ Shares; (ii) _________ per share for purchases in
single transactions of _________ or more Shares but less than
_________ Shares and (iii) _________ per share for purchases in single
transactions of _________ or more Shares.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Fund a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriter and the Fund in accordance with its terms.
Very truly yours,
MUNIYIELD NEW JERSEY FUND, INC.
By:
-----------------------------------------
(Authorized Officer)
Confirmed and Accepted, as of the
date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
--------------------------------------------
Vice President
Investment Banking Group
21