Pioneer Municipal High Income Advantage Trust
Auction Preferred Shares
Par Value $0.0001 Per Share
UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT
UBS Securities LLC
as Managing Representative
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Pioneer Municipal High Income Advantage Trust, a Delaware statutory trust
organized and existing under and by virtue of the laws of the State of Delaware
(commonly referred to as a Delaware business trust) (the "Fund"), proposes to
issue and sell to the underwriters named in Schedule A annexed hereto (the
"Underwriters") an aggregate of 2,000 preferred shares of beneficial interest of
the Fund, no par value, designated Series A Auction Preferred Shares of the Fund
and preferred shares of beneficial interest of the Fund, no par value,
designated Series B Auction Preferred Shares of the Fund, each with a
liquidation preference of $25,000 per share (the "Shares"). The Shares are
described in the Prospectus, which is referred to below.
The Fund has filed, in accordance with the provisions of the Securities Act
of 1933, as amended, and the rules and regulations thereunder (collectively
called the "Act"), and with the provisions of the Investment Company Act of
1940, as amended, and the rules and regulations thereunder (collectively called
the "Investment Company Act"), with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form N-2 (File Nos. 333- ; 811-21409),
including a prospectus and a statement of additional information, relating to
the Shares. The Fund has furnished to you, for use by the Underwriters and by
dealers, copies of one or more preliminary prospectuses (including a preliminary
statement of additional information) (each thereof, including such preliminary
statement of additional information, being herein called a "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the Registration Statement, as amended when it becomes effective (the
"Effective Date"), including all documents filed as a part thereof or
incorporated by reference therein, and including any information contained in a
prospectus subsequently filed with the Commission pursuant to Rule 497 under the
Act and deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A under the Act is herein called the
Registration Statement, and the prospectus (including the statement of
additional information), in the form filed by the Fund with the Commission
pursuant to Rule 497 under the Act or, if no such filing is required, the form
of final prospectus (including the form of final statement of additional
information) included in the "Registration Statement" at the time it became
effective, is herein called the "Prospectus." In addition, the Fund has filed a
Notification of Registration on Form N-8A (the "Notification") pursuant to
Section 8 of the Investment Company Act.
Pioneer Investment Management, Inc. ("Pioneer Investment Management" or the
"Investment Adviser") acts as the Fund's investment adviser pursuant to an
Investment Advisory Agreement by and between the Fund and the Investment
Adviser, dated as of October 15, 2003 (the "Investment Advisory Agreement").
Xxxxx, Brothers Xxxxxxxx & Co. will act as the custodian (the "Custodian") of
the Fund's cash and portfolio assets pursuant to a Custodian Agreement, dated
July 1, 2001, among Xxxxx Brothers Xxxxxxxx & Co. and the Pioneer funds named
therein, as supplemented as of October 1, 2003 to add the Fund as a party
thereto (the "Custodian Agreement"). Pioneer Investment Management Shareholder
Services, Inc. will act as the Fund's transfer agent (the "Transfer Agent")
pursuant to an Investment Company Services Agreement, dated as of October 20,
2003 (the "Transfer Agency Agreement"). The Transfer Agent has engaged Mellon
Investor Services LLC as sub-transfer agent, registrar, shareholder servicing
agent and dividend dispersing agent. The Investment Adviser and Princeton
Administrators, LP have entered into an administration agreement, dated October
6, 2003 (the "Administration Agreement"). Deutsche Bank Trust Company Americas
will act as the Fund's auction agent (the "Auction Agent") for the Shares
pursuant to an Auction Agency Agreement, dated as of [ ] (the "Auction Agency
Agreement"). The Fund has entered into a Letter Agreement, dated as of [ ], with
the Depository Trust Company (the "DTC Agreement").
The Fund, the Investment Adviser and the Underwriters agree as follows:
1. SALE AND PURCHASE. Upon the basis of the warranties and representations
and subject to the terms and conditions herein set forth, the Fund agrees to
sell to the respective Underwriters and each of the Underwriters, severally and
not jointly, agrees to purchase from the Fund the aggregate number of Shares set
forth opposite the name of such Underwriter in Schedule A attached hereto in
each case at a purchase price of $[ ] per Share. The Fund is advised that the
Underwriters intend (i) to make a public offering of their respective portions
of the Shares as soon after the effective date of the Registration Statement as
is advisable and (ii) initially to offer the Shares upon the terms set forth in
the Prospectus. The Underwriters may from time to time increase or decrease the
public offering price after the initial public offering to such extent as they
may determine.
2. PAYMENT AND DELIVERY. Payment of the purchase price for the Shares shall
be made by the Underwriters to the Fund by Federal Funds wire transfer, against
delivery of the certificates for the Shares to you through the facilities of the
Depository Trust Company ("DTC") for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time on the third business day following the date of this Underwriting
Agreement (unless another date or time shall be agreed to by you and the Fund).
The time at which such payment and delivery are actually made is hereinafter
sometimes called the "Time of Purchase" or the "Closing Date."
A certificate in definitive form representing the Shares registered in the
name of Cede & Co., as nominee for DTC, shall be delivered by or on behalf of
the Fund to DTC for the account of the Underwriters. For the purpose of
expediting the checking of the certificates for the Shares by you, the Fund
agrees to make such certificates available to you for such purpose at least one
full business day preceding the Time of Purchase.
3. REPRESENTATIONS AND WARRANTIES OF THE FUND AND THE INVESTMENT ADVISER.
Each of the Fund and the Investment Adviser jointly and severally represents and
warrants to each Underwriter as follows:
(a) On (A) the Effective Date and the date on which the Prospectus is first
filed with the Commission pursuant to Rule 497(b), (h) or (j) under the Act, as
the case may be, (B) the date on which any post-effective amendment to the
Registration Statement (except any post-effective amendment which is filed with
the Commission after the later of (x) one year from the date of this
Underwriting Agreement or (y) the date on which the distribution of the Shares
is completed) became or becomes effective or any amendment or supplement to the
Prospectus was or is filed with the Commission and (C) the Closing Dates, the
Registration Statement, the Prospectus and any such amendment or supplement
thereto and the Notification complied or will comply in all material respects
with the requirements of the Act and the Investment Company Act, as the case may
be. On the Effective Date and on the date that any post-effective amendment to
the Registration Statement (except any post-effective amendment which is filed
with the Commission after the later of (x) one year from the date of this
Underwriting Agreement or (y) the date on which the distribution of the Shares
is completed) became or becomes effective, neither the Registration Statement
nor any such amendment did or will contain any untrue statement of a material
fact or omit to state a material fact required to be stated in it or necessary
to make the statements in it not misleading. At the Effective Date and, if
applicable, the date the Prospectus or any amendment or supplement to the
Prospectus was or is filed with the Commission and at the Closing Dates, the
Prospectus did not or will not, as the case may be, contain any untrue statement
of a material fact or omit to state a material fact required to be stated in it
or necessary to make the statements in it, in light of the circumstances under
which they were made, not misleading. The foregoing representations in this
Section 3(a) do not apply to statements or omissions relating to the
Underwriters made in reliance on and in conformity with information furnished in
writing to the Fund by you expressly for use in the Registration Statement, the
Prospectus, or any amendments or supplements thereto, as described in Section
9(f) hereof.
(b) The Fund has been duly formed, is validly existing as a Delaware
statutory trust, with full power and authority to conduct its business as
described in the Registration Statement and Prospectus, and the Fund is duly
licensed and qualified to do business and in good standing in each jurisdiction
in which its ownership or leasing of property or its conducting of business
requires such qualification, except where the failure to be so licensed and
qualified, either alone or in the aggregate, would not result in a Material
Adverse Effect (as defined below in Section 3(m)) and the Fund owns, possesses
or has obtained and currently maintains all governmental licenses, permits,
consents, orders, approvals and other authorizations, whether foreign or
domestic, necessary to carry on its business as contemplated in the Prospectus,
except such licenses, permits, consents, orders, approvals and other
authorizations of the Fund to obtain, either alone or in the aggregate, would
not result in a Material Adverse Effect (as defined below in Section 3(m)). The
Fund has no subsidiaries.
(c) The capitalization of the Fund is as set forth in the Registration
Statement and the Prospectus. The common shares of beneficial interest of the
Fund (the "Common Shares") and the Shares conform to the description of them in
the Prospectus. All the outstanding Common Shares have been duly authorized and
are validly issued, fully paid and nonassessable. The Shares to be issued and
delivered to and paid for by the Underwriters in accordance with this
Underwriting Agreement against payment therefor as provided by this Underwriting
Agreement have been duly authorized and when issued and delivered to the
Underwriters will have been validly issued and will be fully paid and
nonassessable. No person is entitled to any preemptive or other similar rights
with respect to the Shares.
(d) The Fund is duly registered with the Commission under the Investment
Company Act as a diversified, closed-end management investment company, and,
subject to the filing of a final amendment to the Registration Statement, or any
required filing under Rule 430A or Rule 497 under the Act (the "Final
Amendment"), if not already filed, all action under the Act and the Investment
Company Act, as the case may be, necessary under the federal securities laws on
the part of the Fund to make the public offering and consummate the sale of the
Shares as provided in this Underwriting Agreement has or will have been taken by
the Fund.
(e) The Fund has full power and authority to enter into each of this
Underwriting Agreement, the Investment Advisory Agreement, the Custodian
Agreement, the Transfer Agency Agreement, the Auction Agency Agreement and the
DTC Agreement (collectively, the "Fund Agreements") and to perform all of the
terms and provisions hereof and thereof to be carried out by it and (i) each
Fund Agreement has been duly and validly authorized, executed and delivered by
or on behalf of the Fund, (ii) each Fund Agreement does not violate in any
material respect any of the applicable provisions of the Investment Company Act
or the Investment Advisers Act of 1940, as amended, and the rules and
regulations thereunder (collectively called the "Advisers Act"), as the case may
be, and (iii) assuming due authorization, execution and delivery by the other
parties thereto, each Fund Agreement constitutes the legal, valid and binding
obligation of the Fund enforceable in accordance with its terms, (A) subject, as
to enforcement, to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general equitable principles (regardless of
whether enforcement is sought in a proceeding in equity or at law) and (B)
except as rights to indemnity thereunder may be limited by federal or state
securities laws.
(f) None of (i) the execution and delivery by the Fund of the Fund
Agreements, (ii) the issue and sale by the Fund of the Shares as contemplated by
this Underwriting Agreement and (iii) the performance by the Fund of its
obligations under any of the Fund Agreements or consummation by the Fund of the
other transactions contemplated by the Fund Agreements conflicts with or will
conflict with, or results or will result in a breach of, the Declaration of
Trust of the Fund, as amended through the date hereof (the "Declaration of
Trust"), the By-laws, the Statement of Preferences of Auction Preferred Shares
of the Fund, adopted in connection with the issuance of the Shares and as
amended through the date hereof (the "Statement") or any agreement or instrument
to which the Fund is a party or by which the Fund is bound, or any law, rule or
regulation, or order of any court, governmental instrumentality, securities
exchange or association or arbitrator, whether foreign or domestic, applicable
to the Fund, other than state securities or "blue sky" laws applicable in
connection with the purchase and distribution of the Shares by the Underwriters
pursuant to this Underwriting Agreement.
(g) The Fund is not currently in breach of, or in default under, any
written agreement or instrument to which it is a party or by which it or its
property is bound or affected, except for such breaches or defaults that do not,
either alone or in the aggregate, have a Material Adverse Effect (as defined
below in Section 3(m)).
(h) No person has any right to the registration of any securities of the
Fund because of the filing of the Registration Statement.
(i) No consent, approval, authorization or order of any court or
governmental agency or body or securities exchange or association, whether
foreign or domestic, is required to be obtained by the Fund prior to the Closing
Date for the consummation by the Fund of the transactions to be performed by the
Fund or the performance by the Fund of all the terms and provisions to be
performed by or on behalf of it in each case as contemplated in the Fund
Agreements, except such as (i) have been obtained under the Act, the Investment
Company Act or the Advisers Act, and (ii) may be required under state securities
or "blue sky" laws, in connection with the purchase and distribution of the
Shares by the Underwriters pursuant to this Underwriting Agreement.
(j) Ernst & Young LLP, whose report appears in the Prospectus, are
independent public accountants with respect to the Fund as required by the Act
and the Investment Company Act.
(k) The statement of assets and liabilities included in the Registration
Statement and the Prospectus presents fairly in all material respects, in
accordance with generally accepted accounting principles in the United States
applied on a consistent basis, the financial position of the Fund as of the date
indicated.
(l) The Fund will maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets through an
asset reconciliation procedure or otherwise at reasonable intervals and
appropriate action is taken with respect to any differences.
(m) Since the date as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (i) there has
been no material adverse change in the condition, financial or otherwise,
business affairs or business of the Fund, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"), (ii) there have been no
transactions entered into by the Fund other than those in the ordinary course of
its business and (iii) there has been no dividend or distribution of any kind
declared, paid or made on any class of its capital shares.
(n) There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other governmental agency
or body, foreign or domestic, now pending, or, to the knowledge of the Fund,
threatened against or affecting the Fund, which (i) might result in any material
adverse change in the condition, financial or otherwise, business affairs or
business prospects of the Fund or might materially adversely affect the
properties or assets of the Fund or (ii) is of a character required to be
described in the Registration Statement or the Prospectus; and there are no
contracts, franchises or other documents that are of a character required to be
described in, or that are required to be filed as exhibits to, the Registration
Statement that have not been described or filed as required.
(o) The Fund intends to direct the investment of the proceeds of the
offering of the Shares in such a manner as to comply with the requirements of
Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code").
(p) The Common Shares are listed on the New York Stock Exchange.
(q) The Shares have been, or prior to the Closing Date will be, assigned a
rating of "Aaa" by Xxxxx'x Investors Service, Inc. ("Moody's") and "AAA" by
Fitch, Inc. ("Fitch").
(r) No advertising, sales literature or other promotional materials
(excluding road show slides or road show tapes) were authorized or prepared by
or on behalf of the Fund or the Investment Adviser or any representative thereof
for use in connection with the public offering or sale of the Shares
(collectively referred to as the "sales materials"); any road show slides or
road show tapes complied and comply in all material respects with the applicable
requirements of the Act and the rules and interpretations of the NASD; and no
broker kits, road show slides, road show tapes or sales materials authorized or
prepared by the Fund or authorized or prepared on behalf of the Fund by the
Investment Adviser or any representative thereof for use in connection with the
public offering or sale of the Shares contained or contains any untrue statement
of a material fact or omitted or omits to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTMENT ADVISER. The Investment
Adviser represents to each Underwriter as follows:
(a) The Investment Adviser has been duly formed, is validly existing as a
corporation under the laws of Delaware with full power and authority to perform
its obligations under this Agreement, the Investment Advisory Agreement, and the
Administration Agreement, and the Investment Adviser is duly licensed and
qualified to do business and in good standing in each jurisdiction in which it
is required to be so qualified in order to perform its obligations under this
Agreement, the Administration Agreement, and the Investment Advisory Agreement;
and the Investment Adviser owns, possesses or has obtained and currently
maintains all governmental licenses, permits, consents, orders, approvals and
other authorizations, whether foreign or domestic, necessary to perform its
obligations under this Agreement, the Investment Advisory Agreement, and the
Administration Agreement.
(b) The Investment Adviser is (i) registered as an investment adviser under
the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment
Company Act from acting as the investment adviser for the Fund as contemplated
by the Investment Advisory Agreement, the Registration Statement and the
Prospectus.
(c) The Investment Adviser has, or at the relevant time had, full power and
authority to enter into each of this Underwriting Agreement, the Investment
Advisory Agreement, and the Administration Agreement (collectively, this
Underwriting Agreement, the Investment Advisory Agreement, and the
Administration Agreement being referred to as the "Investment Adviser
Agreements") and to carry out all the terms and provisions hereof and thereof to
be carried out by it; and each Investment Adviser Agreement has been duly and
validly authorized, executed and delivered by the Investment Adviser; none of
the Investment Adviser Agreements violate any of the applicable provisions of
the Investment Company Act or the Advisers Act; and assuming due authorization,
execution and delivery by the other parties thereto, each Investment Adviser
Agreement constitutes a legal, valid and binding obligation of the Investment
Adviser, enforceable in accordance with its terms, (i) subject, as to
enforcement, to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general equitable principles (regardless of
whether enforcement is sought in a proceeding in equity or at law) and (ii)
except as rights to indemnity thereunder may be limited by federal or state
securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any
Investment Adviser Agreement nor (ii) the consummation by the Investment Adviser
of the transactions contemplated by, or the performance of its obligations under
any Investment Adviser Agreement conflicts or will conflict with, or results or
will result in a breach of, the Articles of Incorporation or other
organizational documents of the Investment Adviser or any agreement or
instrument to which the Investment Adviser is a party or by which the Investment
Adviser is bound, or any law, rule or regulation, or order of any court,
governmental instrumentality, securities exchange or association or arbitrator,
whether foreign or domestic, applicable to the Investment Adviser, except in
each case for such conflicts or breaches which do not, either alone or in the
aggregate, have a material adverse effect upon the Investment Adviser's ability
to perform its obligations under the Investment Adviser Agreements.
(e) No consent, approval, authorization or order of any court, governmental
agency or body or securities exchange or association, whether foreign or
domestic, is required to be obtained by the Investment Adviser on or prior to
the Closing Date for the consummation of the transactions contemplated in, or
the performance by the Investment Adviser of its obligations under, any
Investment Adviser Agreement, as the case may be, except such as (i) have been
obtained under the Act, the Investment Company Act or the Advisers Act, and (ii)
may be required by the New York Stock Exchange or under state securities or
"blue sky" laws, in connection with the purchase and distribution of the Shares
by the Underwriters pursuant to this Underwriting Agreement.
(f) The description of the Investment Adviser and its business, and the
statements attributable to the Investment Adviser, in the Registration Statement
and the Prospectus comply in all material respects with the requirements of the
Act and the Investment Company Act and do not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading (and, solely
with respect to the Prospectus, in the light of the circumstances under which
they were made).
(g) There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other governmental agency
or body, foreign or domestic, now pending or, to the knowledge of the Investment
Adviser, threatened against or affecting the Investment Adviser of a nature
required to be disclosed in the Registration Statement or Prospectus.
(h) The Investment Adviser has not made available any promotional materials
intended for use only by qualified broker-dealers and registered representatives
thereof by means of an Internet web site or similar electronic means.
5. AGREEMENTS OF THE PARTIES.
(a) If the Registration Statement relating to the Shares has not yet become
effective, the Fund will promptly file the Final Amendment, if not previously
filed, with the Commission, and will use its best efforts to cause such
Registration Statement to become effective and, as soon as the Fund is advised,
will advise the Managing Representative when the Registration Statement or any
amendment thereto has become effective. If the Registration Statement has become
effective and the Prospectus contained therein omits certain information at the
time of effectiveness pursuant to Rule 430A under the Act, the Fund will file a
430A Prospectus pursuant to Rule 497(h) under the Act as promptly as
practicable, but no later than the second business day following the earlier of
the date of the determination of the offering price of the Shares or the date
the Prospectus is first used after the Effective Date. If the Registration
Statement has become effective and the Prospectus contained therein does not so
omit such information, the Fund will file a Prospectus pursuant to Rule 497(b)
or (j) under the Act as promptly as practicable, but no later than the fifth
business day following the date of the later of the Effective Date or the
commencement of the public offering of the Shares after the Effective Date. In
either case, the Fund will provide you satisfactory evidence of the filing. The
Fund will not file with the Commission any Prospectus or any other amendment
(except any post-effective amendment which is filed with the Commission after
the later of (x) one year from the date of this Underwriting Agreement or (y)
the date on which distribution of the Shares is completed) or supplement to the
Registration Statement or the Prospectus unless a copy has first been submitted
to the Managing Representative a reasonable time before its filing and the
Managing Representative has not objected to it in writing within a reasonable
time after receiving the copy.
(b) For the period of three years from the date hereof, the Fund will
advise the Managing Representative promptly (1) of the issuance by the
Commission of any order in respect of the Fund or the Investment Adviser or
which relates to the offering of the Shares, (2) of the initiation or
threatening of any proceedings for, or receipt by the Fund of any notice with
respect to, the suspension of the qualification of the Shares for sale in any
jurisdiction or the issuance of any order by the Commission suspending the
effectiveness of the Registration Statement, (3) of receipt by the Fund, or any
representative or attorney of the Fund, of any other communication from the
Commission relating to the offering of the Shares, the Registration Statement,
the Notification, any Preliminary Prospectus, the Prospectus or to the
transactions contemplated by this Underwriting Agreement and (4) the issuance by
any court, regulatory body, administrative agency or other governmental agency
or body, whether foreign or domestic, of any order, ruling or decree, or the
threat to initiate any proceedings with respect thereto, regarding the offering
of the Shares by the Fund. The Fund will make every reasonable effort to prevent
the issuance of any order suspending the effectiveness of the Registration
Statement and, if any such order is issued, to obtain its lifting as soon as
possible.
(c) If not delivered prior to the date of this Underwriting Agreement, the
Fund will deliver to the Managing Representative, without charge, a signed copy
of the Registration Statement and the Notification and of any amendments (except
any post-effective amendment which is filed with the Commission after the later
of (x) one year from the date of this Underwriting Agreement or (y) the date on
which the distribution of the Shares is completed) to either the Registration
Statement or the Notification (including all exhibits filed with any such
document) and as many conformed copies of the Registration Statement and any
amendments thereto (except any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of this Underwriting
Agreement or (y) the date on which the distribution of the Shares is completed)
(excluding exhibits) as the Managing Representative may reasonably request.
(d) During such period as a prospectus is required by law to be delivered
by an underwriter or a dealer, the Fund will deliver, without charge, to you,
the Underwriters and any dealers, at such office or offices as you may
designate, as many copies of the Prospectus as you may reasonably request, and,
if any event occurs during such period as a result of which it is necessary to
amend or supplement the Prospectus, in order to make the statements therein, in
light of the circumstances existing when such Prospectus is delivered to a
purchaser of Shares, not misleading in any material respect, or if during such
period it is necessary to amend or supplement the Prospectus to comply with the
Act or the Investment Company Act, the Fund promptly will prepare, submit to the
Managing Representative, file with the Commission and deliver, without charge,
to the Underwriters and to dealers (whose names and addresses the Managing
Representative will furnish to the Fund) to whom Shares may have been sold by
the Underwriters, and to other dealers on request, amendments or supplements to
the Prospectus so that the statements in such Prospectus, as so amended or
supplemented, will not, in light of the circumstances existing when such
Prospectus is delivered to a purchaser, be misleading in any material respect
and will comply with the Act and the Investment Company Act. Delivery by the
Underwriters of any such amendments or supplements to the Prospectus will not
constitute a waiver of any of the conditions in Section 6 hereof.
(e) The Fund will make generally available to holders of the Fund's
securities, as soon as practicable but in no event later than the last day of
the 18th full calendar month following the calendar quarter in which the
Effective Date falls, an earnings statement, if applicable, satisfying the
provisions of Section 11(a) of the Act and, at the option of the Fund, Rule 158
under the Act.
(f) The Fund will take such actions as the Managing Representative
reasonably requests in order to qualify the Shares for offer and sale under the
securities or "blue sky" laws of such jurisdictions as the Managing
Representative reasonably designates; provided that the Fund shall not be
required in connection therewith or as a condition thereof to qualify as a
foreign corporation or to execute a general consent to service of process in any
jurisdiction.
(g) The Fund will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Fund's counsel and accountants in connection
with the registration of the Shares and all other expenses in connection with
the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or reproducing this Underwriting Agreement
and any other documents in connection with the offering, purchase, sale and
delivery of the Shares (including advertising expenses of the Underwriters, if
any); (iii) the cost of preparing share certificates; (iv) the expenses
(including, but not limited to, travel, hotels and other accommodations)
incurred by the Fund's directors, officers, employees and other personnel in
connection with meetings held with registered brokers in connection with the
offering of the Shares, the preparing to market and the marketing of the Shares;
(v) any fees charged by securities rating services for rating the Shares; (vi)
the fees and expenses of the DTC and its nominee, the Custodian and the Auction
Agent; and (vii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for. It is
understood, however, that, except as provided in this Section 5 and Section 7
hereof, the Underwriters will pay all of their own costs and expenses, including
the fees of their counsel and stock transfer taxes, if any, on resale of any of
the Shares by them, except any advertising expenses connected with any offers
they may make.
(h) If the transactions contemplated by this Underwriting Agreement are not
consummated, except as otherwise provided herein, no party will be under any
liability to any other party, except that (i) if this Underwriting Agreement is
terminated by (A) the Fund or the Investment Adviser pursuant to any of the
provisions hereof (otherwise than pursuant to Section 8 hereof) or (B) by you or
the Underwriters because of any inability, failure or refusal on the part of the
Fund or the Investment Adviser to comply with any material terms or because any
of the conditions in Section 6 are not satisfied, the Investment Adviser or an
affiliate and the Fund, jointly and severally, will reimburse the Underwriters
for all out-of-pocket expenses (including the reasonable fees, disbursements and
other charges of their counsel) reasonably incurred by them in connection with
the proposed purchase and sale of the Shares and (ii) no Underwriter who has
failed or refused to purchase the Shares agreed to be purchased by it under this
Underwriting Agreement, in breach of its obligations pursuant to this
Underwriting Agreement, will be relieved of liability to the Fund and the
Investment Adviser and the other Underwriters for damages occasioned by its
default.
(i) Without the prior written consent of the Managing Representative, the
Fund will not offer, sell or register with the Commission, or announce an
offering of, any equity securities of the Fund, within 180 days after the
Effective Date, except for the Shares as described in the Prospectus and any
issuances of Common Shares pursuant to the dividend reinvestment plan
established by the Fund.
(j) The Fund will direct the investment of the net proceeds of the offering
of the Shares in such a manner as to comply with the investment objective and
policies of the Fund as described in the Prospectus.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase the Shares are subject to the accuracy on the date of
this Underwriting Agreement, and on the Closing Date, of the representations of
the Fund and the Investment Adviser in this Underwriting Agreement, to the
accuracy and completeness of all statements made by the Fund, the Investment
Adviser or any of their respective officers in any certificate delivered to the
Managing Representative or its counsel pursuant to this Underwriting Agreement,
to performance by the Fund and the Investment Adviser of their respective
obligations under this Underwriting Agreement and to each of the following
additional conditions:
(a) The Registration Statement must have become effective by 5:30 p.m., New
York City time, on the date of this Underwriting Agreement or such later date
and time as the Managing Representative consents to in writing. The Prospectus
must have been filed in accordance with Rule 497(b), (h) or (j), as the case may
be, under the Act.
(b) No order suspending the effectiveness of the Registration Statement may
be in effect and no proceedings for such purpose may be pending before or, to
the knowledge of counsel to the Underwriters, threatened by the Commission, and
any requests for additional information on the part of the Commission (to be
included in the Registration Statement or the Prospectus or otherwise) must be
complied with or waived to the reasonable satisfaction of the Managing
Representative.
(c) Since the dates as of which information is given in the Registration
Statement and the Prospectus, (i) there must not have been any material adverse
change in the number of outstanding Common Shares or liabilities of the Fund
except as set forth in or contemplated by the Prospectus (provided that a change
in the Fund's net asset value, liabilities or portfolio securities arising in
the course of its normal investment operations shall not be deemed to be a
material adverse change); (ii) there must not have been any material adverse
change in the general affairs, prospects, management, business, financial
condition or results of operations of the Fund or the Investment Adviser whether
or not arising from transactions in the ordinary course of business as set forth
in or contemplated by the Prospectus (provided that a change in the Fund's net
asset value, liabilities or portfolio securities arising in the course of its
normal investment operations shall not be deemed to be a material adverse
change); (iii) the Fund must not have sustained any material interference with
its business from any court or from legislative or other governmental action,
order or decree, whether foreign or domestic, not described in the Registration
Statement and Prospectus; and (iv) there must not have occurred any event that
makes untrue or incorrect in any material respect any statement or information
contained in the Registration Statement or Prospectus or that is not reflected
in the Registration Statement or Prospectus but should be reflected therein in
order to make the statements or information therein (in the case of the
Prospectus, in light of the circumstances in which they were made) not
misleading in any material respect; if, in the judgment of the Managing
Representative, any such development referred to in clause (i), (ii), (iii) or
(iv) of this paragraph (c) makes it impracticable or inadvisable to consummate
the sale and delivery of the Shares pursuant to this Underwriting Agreement by
the Underwriters, at the initial public offering price of the Shares.
(d) The Managing Representative must have received on the Closing Date a
certificate, dated such date, of the President or a Vice-President and the chief
financial or accounting officer of each of the Fund and the Investment Adviser
certifying in their capacity as such officers that (i) the signers have examined
the Registration Statement, the Prospectus, and this Underwriting Agreement,
(ii) the representations of the Fund (with respect to the certificates from such
Fund officers) and the representations of the Investment Adviser (with respect
to the certificates from such officers of the Investment Adviser) in this
Underwriting Agreement are accurate on and as of the date of the certificate,
(iii) there has not been any material adverse change in the general affairs,
prospects, management, business, financial condition or results of operations of
the Fund (with respect to the certificates from such Fund officers) or the
Investment Adviser (with respect to the certificates from such officers of the
Investment Adviser), which change would materially and adversely affect the
ability of the Fund or the Investment Adviser, as the case may be, to fulfill
its obligations under this Underwriting Agreement or the Investment Advisory
Agreement, whether or not arising from transactions in the ordinary course of
business, (iv) with respect to the Fund only, no order suspending the
effectiveness of the Registration Statement, or prohibiting the sale of any of
the Shares has been issued and no proceedings for any such purpose are pending
before or threatened by the Commission or any other regulatory body, whether
foreign or domestic, (v) no order having a material adverse effect on the
ability of the Investment Adviser to fulfill its obligations under this
Underwriting Agreement, the Investment Advisory Agreement, or the Administration
Agreement, as the case may be, has been issued and no proceedings for any such
purpose are pending before or threatened by the Commission or any other
regulatory body, whether foreign or domestic, and (vi) each of the Fund (with
respect to the certificates from such Fund officers) and the Investment Adviser
(with respect to the certificates from such officers of the Investment Adviser)
has performed all of its respective agreements that this Underwriting Agreement
requires it to perform by the Closing Date (to the extent not waived in writing
by the Managing Representative).
(e) You must receive on the Closing Date the opinions dated such Closing
Date substantially in the form of Schedule B to this Underwriting Agreement from
the counsel identified in such Schedule.
(f) You must receive on the Closing Date from Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP or its affiliated entities an opinion dated the Closing Date with
respect to the Fund, the Shares, the Registration Statement and the Prospectus,
this Underwriting Agreement and the form and sufficiency of all proceedings
taken in connection with the sale and delivery of the Shares. Such opinion and
proceedings shall fulfill the requirements of this Section 6(f) only if such
opinion and proceedings are satisfactory in all respects to the Managing
Representative. The Fund and the Investment Adviser must have furnished to such
counsel such documents as counsel may reasonably request for the purpose of
enabling them to render such opinion.
(g) The Managing Representative must receive on the date this Underwriting
Agreement is signed and delivered by you a signed letter, dated such date,
substantially in the form of Schedule C to this Underwriting Agreement from the
firm of accountants designated in such Schedule. The Managing Representative
also must receive on the Closing Date a signed letter from such accountants,
dated as of the Closing Date, confirming on the basis of a review in accordance
with the procedures set forth in their earlier letter that nothing has come to
their attention during the period from a date not more than five business days
before the date of this Underwriting Agreement, specified in the letter, to a
date not more than five business days before the Closing Date, that would
require any change in their letter referred to in the foregoing sentence.
(h) The Shares shall have been accorded a rating of "Aaa" by Xxxxx'x and
"AAA" by Fitch, and letters to such effect, dated on or before the Closing Date,
shall have been delivered to the Managing Representative.
(i) As of the Closing Date, and assuming the receipt of the net proceeds
from the sale of the Shares, the 1940 Act Preferred Shares Asset Coverage and
the APS Basic Maintenance Amount (each as defined in the Prospectus) each will
be met.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Underwriting Agreement will comply only if they are in form
and scope reasonably satisfactory to counsel for the Underwriters, provided that
any such documents, forms of which are annexed hereto, shall be deemed
satisfactory to such counsel if substantially in such form.
7. TERMINATION. This Underwriting Agreement may be terminated by the
Managing Representative by notifying the Fund at any time:
(a) before the later of the effectiveness of the Registration Statement and
the time when any of the Shares are first generally offered pursuant to this
Underwriting Agreement by the Managing Representative to dealers by letter or
telegram;
(b) at or before the Closing Date if, in the sole judgment of the Managing
Representative, payment for and delivery of any Shares is rendered impracticable
or inadvisable because (i) trading in the equity securities of the Fund is
suspended by the Commission or by the principal exchange that lists the Common
Shares, (ii) trading in securities generally on the New York Stock Exchange or
the Nasdaq Stock Market shall have been suspended or limited or minimum or
maximum prices shall have been generally established on such exchange or
over-the-counter market, (iii) additional material governmental restrictions,
not in force on the date of this Underwriting Agreement, have been imposed upon
trading in securities or trading has been suspended on any U.S. securities
exchange, (iv) a general banking moratorium has been established by U.S. federal
or New York authorities or (v) any material adverse change in the financial or
securities markets in the United States or in political, financial or economic
conditions in the United States or any outbreak or material escalation of
hostilities or declaration by the United States of a national emergency or war
or other calamity or crisis shall have occurred the effect of any of which is
such as to make it, in the sole judgment of the Managing Representative,
impracticable or inadvisable to market the Shares on the terms and in the manner
contemplated by the Prospectus; or
(c) at or before the Closing Date, if any of the conditions specified in
Section 6 have not been fulfilled when and as required by this Underwriting
Agreement.
8. SUBSTITUTION OF UNDERWRITERS. If one or more of the Underwriters fails
(other than for a reason sufficient to justify the termination of this
Underwriting Agreement) to purchase on the Closing Date the Shares agreed to be
purchased on the Closing Date by such Underwriter or Underwriters, the Managing
Representative may find one or more substitute underwriters to purchase such
Shares or make such other arrangements as the Managing Representative deems
advisable, or one or more of the remaining Underwriters may agree to purchase
such Shares in such proportions as may be approved by the Managing
Representative, in each case upon the terms set forth in this Underwriting
Agreement. If no such arrangements have been made within 36 hours after the
Closing Date, and
(a) the number of Shares to be purchased by the defaulting Underwriters on
the Closing Date does not exceed 10% of the Shares that the Underwriters are
obligated to purchase on such Closing Date, each of the nondefaulting
Underwriters will be obligated to purchase such Shares on the terms set forth in
this Underwriting Agreement in proportion to their respective obligations under
this Underwriting Agreement, or
(b) the number of Shares to be purchased by the defaulting Underwriters on
the Closing Date exceeds 10% of the Shares to be purchased by all the
Underwriters on the Closing Date, the Fund will be entitled to an additional
period of 24 hours within which to find one or more substitute underwriters
reasonably satisfactory to the Managing Representative to purchase such Shares
on the terms set forth in this Underwriting Agreement.
In any such case, either the Managing Representative or the Fund will have
the right to postpone the Closing Date for not more than five business days in
order that necessary changes and arrangements (including any necessary
amendments or supplements to the Registration Statement or the Prospectus) may
be effected by the Managing Representative and the Fund. If the number of Shares
to be purchased on the Closing Date by such defaulting Underwriter or
Underwriters exceeds 10% of the Shares that the Underwriters are obligated to
purchase on the Closing Date, and none of the nondefaulting Underwriters or the
Fund makes arrangements pursuant to this Section within the period stated for
the purchase of the Shares that the defaulting Underwriters agreed to purchase,
this Underwriting Agreement will terminate without liability on the part of any
nondefaulting Underwriter, the Fund or the Investment Adviser, except as
provided in Sections 6(h) and 9 hereof. This Section will not affect the
liability of any defaulting Underwriter to the Fund or the nondefaulting
Underwriters arising out of such default. A substitute underwriter will become a
Underwriter for all purposes of this Underwriting Agreement.
9. INDEMNITY AND CONTRIBUTION.
(a) Each of the Fund and the Investment Adviser, jointly and severally,
agrees to indemnify, defend and hold harmless each Underwriter, its partners,
directors and officers, and any person who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or any such
person may incur under the Act, the Exchange Act, the Investment Company Act,
the Advisers Act, the common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Fund) or in a Prospectus (the term "Prospectus" for the
purpose of this Section 9 being deemed to include any Preliminary Prospectus,
any sales materials prepared or authorized by the Fund, the Prospectus and the
Prospectus as amended or supplemented by the Fund), or arises out of or is based
upon any omission or alleged omission to state a material fact required to be
stated in either such Registration Statement or Prospectus or necessary to make
the statements made therein not misleading, except insofar as any such loss,
damage, expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in and in
conformity with information furnished in writing by or on behalf of any
Underwriter through you to the Fund or the Investment Adviser expressly for use
with reference to such Underwriter in such Registration Statement or such
Prospectus or arises out of or is based upon any omission or alleged omission to
state a material fact in connection with such information required to be stated
in such Registration Statement or such Prospectus or necessary to make such
information not misleading, provided, however, that the indemnity agreement
contained in this subsection (a) with respect to any Preliminary Prospectus or
amended Preliminary Prospectus shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter) from whom the
person asserting any such loss, damage, expense, liability or claim purchased
the Shares which is the subject thereof if the Prospectus corrected any such
alleged untrue statement or omission and if such Underwriter failed to send or
give a copy of the Prospectus to such person at or prior to the written
confirmation of the sale of such Shares to such person, unless the failure is
the result of noncompliance by the Fund with Section 5(d) hereof.
If any action, suit or proceeding (together, a "Proceeding") is brought
against an Underwriter or any such person in respect of which indemnity may be
sought against the Fund or the Investment Adviser pursuant to the foregoing
paragraph, such Underwriter or such person shall promptly notify the Fund or the
Investment Adviser, as the case may be, in writing of the institution of such
Proceeding and the Fund or the Investment Adviser shall assume the defense of
such Proceeding, including the employment of counsel reasonably satisfactory to
such indemnified party and payment of all fees and expenses; provided, however,
that the omission to so notify the Fund or the Investment Adviser shall not
relieve the Fund or the Investment Adviser from any liability which the Fund or
the Investment Adviser may have to any Underwriter or any such person or
otherwise and, unless only to the extent that, such omission results in the
forfeiture of substantive rights or defenses by the indemnifying party. Such
Underwriter or such person shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such Underwriter or of such person unless the employment of such
counsel shall have been authorized in writing by the Fund or the Investment
Adviser, as the case may be, in connection with the defense of such Proceeding
or the Fund or the Investment Adviser shall not have, within a reasonable period
of time in light of the circumstances, employed counsel to have charge of the
defense of such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from, additional to or in conflict with those available to the
Fund or the Investment Adviser (in which case the Fund or the Investment Adviser
shall not have the right to direct the defense of such Proceeding on behalf of
the indemnified party or parties), in any of which events such fees and expenses
shall be borne by the Fund or the Investment Adviser and paid as incurred (it
being understood, however, that the Fund or the Investment Adviser shall not be
liable for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). None of the Fund or the Investment Adviser shall be liable for any
settlement of any Proceeding effected without its written consent but if settled
with the written consent of the Fund or the Investment Adviser, the Fund or the
Investment Adviser, as the case may be, agrees to indemnify and hold harmless
any Underwriter and any such person from and against any loss or liability by
reason of such settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second sentence of this paragraph, then the indemnifying party agrees
that it shall be liable for any settlement of any Proceeding effected without
its written consent if (i) such settlement is entered into more than 60 business
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days'
prior notice of its intention to settle. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened Proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Fund and the Investment Adviser, its directors and officers, and
any person who controls the Fund or the Investment Adviser within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons from and against any loss, damage,
expense, liability or claim (including the reasonable cost of investigation)
which, jointly or severally, the Fund or the Investment Adviser or any such
person may incur under the Act, the Exchange Act, the Investment Company Act,
the Advisers Act, the common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in and in conformity
with information furnished in writing by or on behalf of such Underwriter
through you to the Fund or the Investment Adviser expressly for use with
reference to such Underwriter in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the
Fund) or in a Prospectus, or arises out of or is based upon any omission or
alleged omission to state a material fact in connection with such information
required to be stated in such Registration Statement or such Prospectus or
necessary to make such information not misleading.
If any Proceeding is brought against the Fund, the Investment Adviser, or
any such person in respect of which indemnity may be sought against any
Underwriter pursuant to the foregoing paragraph, the Fund or the Investment
Adviser or such person shall promptly notify such Underwriter in writing of the
institution of such Proceeding and such Underwriter shall assume the defense of
such Proceeding, including the employment of counsel reasonably satisfactory to
such indemnified party and payment of all fees and expenses; provided, however,
that the omission to so notify such Underwriter shall not relieve such
Underwriter from any liability which such Underwriter may have to the Fund, the
Investment Adviser, or any such person or otherwise. The Fund, the Investment
Adviser, or such person shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
the Fund, the Investment Adviser, or such person, as the case may be, unless the
employment of such counsel shall have been authorized in writing by such
Underwriter in connection with the defense of such Proceeding or such
Underwriter shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of such Proceeding
or such indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them which are different from or additional
to or in conflict with those available to such Underwriter (in which case such
Underwriter shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties, but such Underwriter may employ
counsel and participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Underwriter), in any of which events
such fees and expenses shall be borne by such Underwriter and paid as incurred
(it being understood, however, that such Underwriter shall not be liable for the
expenses of more than one separate counsel (in addition to any local counsel) in
any one Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding). No
Underwriter shall be liable for any settlement of any such Proceeding effected
without the written consent of such Underwriter but if settled with the written
consent of such Underwriter, such Underwriter agrees to indemnify and hold
harmless the Fund or the Investment Adviser and any such person from and against
any loss or liability by reason of such settlement. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding.
(c) If the indemnification provided for in this Section 9 is unavailable to
an indemnified party under subsections (a) and (b) of this Section 9 in respect
of any losses, damages, expenses, liabilities or claims referred to therein,
then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, damages, expenses, liabilities or
claims (i) in such proportion as is appropriate to reflect the relative benefits
received by the Fund and the Investment Adviser on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Fund and the
Investment Adviser on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
damages, expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Fund or the
Investment Adviser on the one hand and the Underwriters on the other shall be
deemed to be in the same respective proportions as the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Fund and the total underwriting discounts and
commissions received by the Underwriters, bear to the aggregate public offering
price of the Shares. The relative fault of the Fund and the Investment Adviser
on the one hand and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission relates to
information supplied by the Fund or the Investment Adviser or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, damages, expenses,
liabilities and claims referred to in this subsection shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating, preparing to defend or defending any Proceeding.
(d) The Fund and the Investment Adviser and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in subsection (c) above.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the fees and commissions received
by such Underwriter. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 9 are several
in proportion to their respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this Section 9
and the covenants, warranties and representations of the Fund contained in this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of any Underwriter, its partners, directors or officers or
any person (including each partner, officer or director of such person) who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, or by or on behalf of the Fund, the Investment Adviser,
its directors or officers or any person who controls the Fund, the Investment
Adviser within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and shall survive any termination of this Agreement or the
issuance and delivery of the Shares. The Fund or the Investment Adviser and each
Underwriter agree promptly to notify each other of the commencement of any
Proceeding against it and, in the case of the Fund, the Investment Adviser,
against any of the Fund's, the Investment Adviser's officers or directors in
connection with the issuance and sale of the Shares, or in connection with the
Registration Statement or Prospectus.
(f) The Fund and the Investment Adviser each acknowledge that the
statements with respect to (1) the public offering of the Shares as set forth on
the cover page of and (2) the statements relating to stabilization, to selling
concessions and reallowances of selling concessions and with respect to
discretionary accounts under the caption "Underwriting" in the Prospectus
constitute the only information furnished in writing to the Fund by the Managing
Representative on behalf of the Underwriters expressly for use in such document.
The Underwriters severally confirm that these statements are correct in all
material respects and were so furnished by or on behalf of the Underwriters
severally for use in the Prospectus.
(g) Notwithstanding any other provisions in this Section 9, no party shall
be entitled to indemnification or contribution under this Underwriting Agreement
against any loss, claim, liability, expense or damage arising by reason of such
person's willful misfeasance, bad faith, gross negligence or reckless disregard
in the performance of its duties hereunder.
10. NOTICES. Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing or by telegram and, if to the
Underwriters, shall be sufficient in all respects if delivered or sent to UBS
Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Syndicate
Department and, if to the Fund or the Investment Adviser, shall be sufficient in
all respects if delivered or sent to the Fund or the Investment Adviser, as the
case may be, at the offices of the Fund or the Investment Adviser at 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxx.
11. GOVERNING LAW; CONSTRUCTION. This Agreement and any claim, counterclaim
or dispute of any kind or nature whatsoever arising out of or in any way
relating to this Agreement ("Claim"), directly or indirectly, shall be governed
by, and construed in accordance with, the laws of the State of New York. The
Section headings in this Agreement have been inserted as a matter of convenience
of reference and are not a part of this Agreement.
12. SUBMISSION TO JURISDICTION. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Fund consents
to the jurisdiction of such courts and personal service with respect thereto.
The Fund hereby consents to personal jurisdiction, service and venue in any
court in which any Claim arising out of or in any way relating to this Agreement
is brought by any third party against UBS Securities LLC or any indemnified
party. Each of UBS Securities LLC, the Fund (on its behalf and, to the extent
permitted by applicable law, on behalf of its stockholders and affiliates) and
the Investment Adviser (on its behalf and, to the extent permitted by applicable
law, on behalf of its stockholders and affiliates) waives all right to trial by
jury in any action, proceeding or counterclaim (whether based upon contract,
tort or otherwise) in any way arising out of or relating to this Agreement. Each
of the Fund and the Investment Adviser agrees that a final judgment in any such
action, proceeding or counterclaim brought in any such court may be enforced in
any other courts in the jurisdiction of which the Fund or the Investment
Adviser, as the case may be, is or may be subject, by suit upon such judgment.
13. PARTIES AT INTEREST. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Investment Adviser and the
Fund and to the extent provided in Section 9 hereof the controlling persons,
directors and officers referred to in such section, and their respective
successors, assigns, heirs, personal representatives and executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
14. COUNTERPARTS. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Underwriters, the Fund or the Investment Adviser, and any successor or assign of
any substantial portion of the Fund's, the Investment Adviser's, or any of the
Underwriters' respective businesses and/or assets.
16. DISCLAIMER OF LIABILITY OF TRUSTEES AND BENEFICIARIES. A copy of the
Declaration of Trust is on file with the Secretary of The State of Delaware, and
notice hereby is given that this Underwriting Agreement is executed on behalf of
the Trustees of the Fund as Trustees and not individually and that the
obligations or arising out of this Underwriting Agreement are not binding upon
any of the Trustees or beneficiaries individually but are binding only upon the
assets and properties of the Fund.
If the foregoing correctly sets forth the understanding among the Fund and
the Underwriters, please so indicate in the space provided below for the
purpose, whereupon this letter and your acceptance shall constitute a binding
agreement among the Fund, the Investment Adviser and the Underwriters,
severally.
Very truly yours,
PIONEER MUNICIPAL HIGH INCOME ADVANTAGE
TRUST
--------------------------
By:
Title:
PIONEER INVESTMENT MANAGEMENT, INC.
--------------------------
By:
Title:
Accepted and agreed to as of the date first above written, on behalf of
themselves and the other several Underwriters named in Schedule A
UBS SECURITIES LLC
WACHOVIA CAPITAL MARKETS, LLC
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: UBS SECURITIES LLC
--------------------------
By: Xxxxx Xxxxxxxx
Title: Managing Director
--------------------------
By: Xxxx X. Reit
Title: Executive Director
SCHEDULE A
UNDERWRITER Number of Shares to be PURCHASED
----------- ---------
SCHEDULE B
FORM OF OPINION OF
XXXX & XXXX LLP REGARDING THE FUND AND THE ADVISER
[ ], 2003
UBS Securities LLC
As Representative of the
Several Underwriters
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Pioneer Municipal High Income Advantage Trust
Ladies and Gentlemen:
This letter is being furnished to you pursuant to Section 6(e) of the
Underwriting Agreement, dated as of [ ], 2003 (the "Underwriting Agreement"),
among you, as Managing Representative of the several Underwriters, Pioneer
Investment Management, Inc., a Delaware corporation (the "Adviser"), and Pioneer
Municipal High Income Advantage Trust, a Delaware statutory trust (the "Trust").
Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings ascribed to them in the Underwriting Agreement.
We have acted as counsel for the Trust and the Adviser in connection with
the sale to the Underwriters by the Trust of an aggregate of [ ] preferred
shares of beneficial interest, par value $0.0001, designated Series A Auction
Preferred Shares of the Trust and [ ]preferred shares of beneficial interest,
par value $0.0001, designated B Auction Preferred Shares of the Trust, each with
a liquidation preference of $25,000 per share (collective, the "Shares"),
pursuant to Section 1 of the Underwriting Agreement. The rights, preferences and
limitations of the Shares are set forth in a Statement of Preferences of Auction
Preferred Shares (the "Statement"). As such counsel, we have assisted in the
preparation and filing with the Securities and Exchange Commission (the
"Commission") of the Trust's Registration Statement on Form N-2 dated October
24, 2003 (File Nos. 333- and 811-21409), and amendment Nos. [1 and 2] thereto,
which Registration Statement became effective on [ ], 2003 (the "Effective
Date"). Such Registration Statement, in the form in which it became effective,
is referred to herein as the "Registration Statement," and the prospectus dated
[ ], 2003 and statement of additional information dated [ ], 2003 included
therein, as filed pursuant to Rule 497 of the Securities Act of 1933, as amended
(the "Securities Act"), on [ ], 2003, are referred to herein as the "Prospectus"
and the "Statement of Additional Information."
We have examined and relied upon the Agreement and Declaration of Trust
(the "Declaration of Trust") and By-Laws of the Trust, each as amended to date,
the Statement, the the Certificate of Incorporation and By-Laws of the Adviser,
each as amended to date, records of meetings or written actions of shareholders
and of the Board of Trustees of the Trust, trust proceedings of the Trust in
connection with the authorization and issuance of the Shares, the Registration
Statement, the Prospectus, the Statement of Additional Information, the
Underwriting Agreement, written actions of the Board of Directors of the
Adviser, certificates of representatives of the Trust, certificates of public
officials and such other documents as we have deemed necessary as a basis for
the opinions hereinafter expressed. We have assumed that all trust or corporate
records of the Trust and the Adviser and stock books of the Trust are complete
and accurate.
Insofar as the opinions expressed in this letter relate to factual matters,
information with respect to which is in the possession of the Trust or the
Adviser, we have relied, with your permission, upon certificates, statements and
representations of officers and other representatives of the Trust and the
Adviser, representations made in the Underwriting Agreement and statements
contained in the Registration Statement. We have not attempted to verify
independently such facts, although nothing has come to our attention which has
caused us to question the accuracy of such certificates, statements or
representations.
In our examination of the documents referred to above, we have assumed the
genuineness of all signatures, the legal capacity of each individual signing
such documents, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as copies,
and the authenticity of the originals of such documents.
Any reference to "our knowledge" or to any matters "known to us," "of which
we are aware" or "coming to our attention" or any variation of any of the
foregoing, shall mean the conscious awareness of the attorneys in this firm who
have rendered substantive attention to the transaction to which this opinion
relates, as to the existence or absence of any facts which would contradict the
opinions and statements set forth herein. Other than as expressly set forth
below, we have not undertaken, for purposes of this opinion, any independent
investigation to determine the existence or absence of such facts, and no
inference as to our knowledge of the existence or absence of such facts should
be drawn from the fact of our representation of the Trust and the Adviser.
Moreover, we have not searched any electronic databases or the dockets of any
court, regulatory body or administrative or other governmental agency or other
filing office in any jurisdiction.
For purposes of the opinions set forth in this letter, we have assumed that
the agreements referred to herein have been duly authorized, executed and
delivered by all parties thereto other than the Trust and the Adviser, and that
all such other parties have all requisite power and authority to effect the
transactions contemplated by such agreements. We have also assumed that each
such agreement is the valid and binding obligation of each party thereto other
than the Trust and is enforceable against all such other parties in accordance
with its terms. We do not render any opinion as to the application of any
federal or state law or regulation to the power, authority or competence of any
party to the agreements other than the Trust.
Our opinions set forth below are qualified to the extent that they may be
subject to or affected by (i) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws relating to or affecting the
rights of creditors generally, (ii) statutory or decisional law concerning
recourse by creditors to security in the absence of notice or hearing, (iii)
duties and standards imposed on creditors and parties to contracts, including,
without limitation, requirements of good faith, reasonableness and fair dealing,
and (iv) general equitable principles. We express no opinion as to the
availability of any equitable or specific remedy upon any breach of any of the
agreements as to which we are opining herein, or any of the agreements,
documents or obligations referred to therein, or to the successful assertion of
any equitable defenses, inasmuch as the availability of such remedies or the
success of any equitable defense may be subject to the discretion of a court.
Without limiting the foregoing, with respect to our opinions in paragraphs 9, 16
and 17 below, we are expressing no opinion as to the enforceability of the
indemnification or contribution provisions of the Underwriting Agreement and the
Shareholder Servicing Agreement between the Adviser and UBS Securities LLC,
dated October 20, 2003 (the "Shareholder Servicing Agreement").
We also express no opinion herein as to any provision of any agreement (a)
which may be deemed to or construed to waive any right of the Trust or the
Adviser, (b) to the effect that rights and remedies are not exclusive, that
every right or remedy is cumulative and may be exercised in addition to or with
any other right or remedy and does not preclude recourse to one or more other
rights or remedies, (c) relating to the effect of invalidity or unenforceability
of any provision of any agreement on the validity or enforceability of any other
provision thereof, (d) requiring the payment of penalties, consequential damages
or liquidated damages, (e) which is in violation of public policy, including,
without limitation, any provision relating to non-competition and
non-solicitation or relating to indemnification and contribution with respect to
securities law matters, (f) purporting to indemnify any person against his, her
or its own negligence or intentional misconduct, (g) which provides that the
terms of any agreement may not be waived or modified except in writing or (h)
relating to choice of law or consent to jurisdiction.
Our opinion expressed in paragraph 1 below as to the legal existence and
good standing of the Trust is based solely on a certificate of legal existence
issued by the Secretary of State of the State of Delaware, a copy of which has
been made available to your counsel, and our opinion with respect to such
matters is rendered as of the date of such certificate and limited accordingly.
Our opinion expressed in paragraph 14 below as to the legal existence and good
standing of the Adviser is based solely on a certificate of legal existence
issued by the Secretary of State of the State of Delaware, a copy of which has
been made available to your counsel, and our opinion with respect to such
matters is rendered as of the date of such certificate and limited accordingly.
We express no opinion as to the tax good standing of the Trust or the Adviser in
any jurisdiction.
In connection with our opinion expressed in paragraph 2 below, insofar as
it relates to full payment for the outstanding Shares of the Trust, we have
relied solely on a certificate of an officer of the Trust. Our opinion expressed
in paragraph 2 below as to issued and outstanding shares of beneficial interest
of the Trust is based solely on a certificate of the Trust's transfer agent,
which we assume to be complete and accurate. Our opinion expressed in paragraph
2 below as to the due and valid issuance of all outstanding Shares of the Trust
is based solely on a review of the corporate minute books of the Trust, and a
certificate of an officer of the Trust, each of which we assume to be complete
and accurate.
Our opinions expressed in paragraphs 4 and 10 below as to the effectiveness
of the Registration Statement under the Securities Act and the Trust's
Registration Statement on Form 8-A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), are based solely upon oral advice from Xx. Xxxxxxx
Xxxxxx at the Division of Investment Management of the Commission that such
Registration Statements were declared effective as of [ ] on [ ], 2003. Our
opinion expressed in paragraph 10 below as to the listing of the common shares
of the Trust on the New York Stock Exchange (the "Exchange") is solely based
upon a letter from the Exchange to the Trust, dated October 10, 2003. Our
opinion in paragraph 15 is based solely upon the Commission's Investment Adviser
Public Disclosure Website as of the date of this opinion.
We are opining herein solely with respect to the state laws of The
Commonwealth of Massachusetts, the Delaware Statutory Trust Act statute, the
Delaware Corporation Law statute, and the federal laws of the United States of
America. To the extent that the laws of any other jurisdiction govern any of the
matters as to which we express an opinion below, we have assumed for purposes of
this opinion, with your permission and without independent investigation, that
the laws of such jurisdiction are identical to the substantive state laws of The
Commonwealth of Massachusetts, and we express no opinion as to whether such
assumption is reasonable or correct. We note that the Underwriting Agreement,
the Shareholder Servicing Agreement and the Additional Compensation Agreement
between the Adviser and UBS Securities LLC, dated October 20, 2003 (the
"Additional Compensation Agreement"), are governed by New York law. We express
no opinion with respect to (i) the securities or Blue Sky laws of any state or
other jurisdiction of the United States or of any foreign jurisdiction or (ii)
the By-Laws or any rules or other regulations of the National Association of
Securities Dealers, Inc. In addition, we express no opinion and, except as set
forth below in the second to last paragraph hereof, make no statement herein
with respect to the antifraud laws of any jurisdiction.
On the basis of and subject to the foregoing, we are of the opinion that:
1. The Trust is validly existing as a statutory trust in good standing
under the state laws of the State of Delaware and has statutory trust power and
authority to carry on its business and own, lease and operate its properties as
described in the Prospectus, and to enter into and perform its obligations under
the Underwriting Agreement.
2. The authorized, issued and outstanding shares of beneficial interest of
the Trust as of the date of the Prospectus are as set forth in the Statement of
Additional Information under the caption "Financial Statements and Independent
Auditors' Report." All issued and outstanding shares of beneficial interest of
the Trust as of the date hereof have been duly authorized, validly issued, and
fully paid and are not subject to any preemptive or similar statutory rights
under the Delaware Statutory Trust Act statute or, to our knowledge, similar
contractual rights granted by the Trust.
3. The Shares have been duly authorized and, when issued and delivered to
the Underwriters against payment therefor pursuant to the Underwriting
Agreement, will be validly issued and fully paid.
4. The Registration Statement has been declared effective under the
Securities Act. Any required filing of the Prospectus pursuant to Rule 497(c) or
Rule 497(h) has been made in the manner and within the time period required by
Rule 497. To our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act. To our
knowledge, no order of suspension or revocation of registration pursuant to
Section 8(e) of the Investment Company Act of 1940, as amended (the "1940 Act"),
has been issued, and no proceedings for any such purpose have been instituted or
are pending or threatened by the Commission.
5. The Trust is registered with the Commission under the 1940 Act as a
closed-end, diversified management investment company; and to our knowledge, no
order of suspension or revocation of such registration has been issued nor have
any proceedings therefor been initiated or, to our knowledge, threatened by the
Commission.
6. The Underwriting Agreement has been duly authorized, executed and
delivered by the Trust and the Adviser.
7. Each of the Investment Advisory Agreement between the Trust and the
Adviser, dated October 15, 2003 (the "Investment Advisory Agreement"), the
Custodian Agreement, dated as of July 1, 2001, among Xxxxx Brothers Xxxxxxxx &
Co. and the Pioneer mutual funds named therein, as supplemented as of September
29, 2003 to add the Trust as a party thereto (the "Custodian Agreement"), the
Investment Company Services Agreement between the Trust and Pioneer Investment
Management Shareholder Services, Inc., dated October 20, 2003 (the "Transfer
Agency Agreement"), the Auction Agency Agreement between the Trust and Deutsche
Bank Trust Company Americas, dated [ ] (the "Auction Agency Agreement"), the
Letter Agreement between the Trust and the Depository Trust Company, dated [ ]
(the "DTC Agreement"), the Underwriting Agreement, the Shareholder Servicing
Agreement and the Additional Compensation Agreement comply in all material
respects with all applicable provisions of the 1940 Act, the Investment Advisers
Act of 1940, as amended (the "Advisers Act"), and the rules and regulations of
the Commission under the 1940 Act and the Advisers Act.
8. Each of the Investment Advisory Agreement, the Custodian Agreement, the
Transfer Agency Agreement, the Auction Agency Agreement and the DTC Agreement
has been duly authorized by all requisite action on the part of the Trust, and
duly executed and delivered by the Trust, as of the dates noted therein.
Assuming due authorization, execution and delivery by the other parties thereto,
each of the Investment Advisory Agreement, the Custodian Agreement, the Transfer
Agency Agreement, the Auction Agency Agreement, and the DTC Agreement
constitutes a valid and binding agreement of the Trust, enforceable against the
Trust in accordance with its terms.
9. The execution and delivery of the Investment Advisory Agreement, the
Transfer Agency Agreement, the Custodian Agreement and the Underwriting
Agreement by the Trust, the compliance by the Trust with all the provisions
thereof and the consummation by the Trust of the transactions contemplated
thereby (including the issuance and sale of the Shares and the use of the
proceeds from the sale of the Shares as described in the Prospectus under the
caption "Use of Proceeds") do not and will not (A) require any consent,
approval, authorization or other order of, or qualification with, any
Massachusetts state or U.S. federal court or governmental body or agency (except
such as may be required under the securities or Blue Sky laws of the various
states or the National Association of Securities Dealers, Inc. or as have been
obtained under the federal securities laws), (B) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, or result in
the imposition of a lien, charge or encumbrance upon the assets of the Trust
pursuant to any indenture, loan agreement, mortgage, lease or other agreement or
instrument filed as an exhibit to the Registration Statement, (C) violate or
conflict with the Declaration of Trust, the By-laws or the Statement, (D)
violate or conflict with the Delaware Statutory Trust Act statute or any
applicable U.S. federal or Massachusetts state law, rule or regulation which in
our experience is normally applicable in transactions of the type contemplated
by the Underwriting Agreement, or (E) violate or conflict with any judgment,
order or decree specifically naming the Trust or specifically applicable to the
Trust's property and of which we are aware.
10. The common shares of the Trust are listed on the New York Stock
Exchange and the Trust's Registration Statement on Form 8-A under the Exchange
Act has become effective.
11. To our knowledge, there are no legal or governmental proceedings
pending or threatened against the Trust.
12. The statements in the Prospectus under the captions "Description of
shares" and in Item 29 of Part C of the Registration Statement, insofar as such
statements constitute matters of law or legal conclusions, are correct in all
material respects.
13. The Trust does not require any tax or other rulings to enable it to
qualify as a regulated investment company under Subchapter M of the Internal
Revenue Code of 1986, as amended.
14. The Adviser is validly existing as a corporation under the laws of the
State of Delaware. The Adviser has the corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Underwriting
Agreement, the Shareholder Servicing Agreement, the Additional Compensation
Agreement and the Investment Advisory Agreement.
15. The Adviser is registered as an investment adviser under the Advisers
Act and is not prohibited by the Advisers Act or the 1940 Act from acting as
investment adviser for the Trust as contemplated by the Investment Advisory
Agreement, the Registration Statement and the Prospectus.
16. The Shareholder Servicing Agreement, the Investment Advisory Agreement
and the Additional Compensation Agreement have been duly authorized, executed
and delivered by the Adviser and each constitutes a valid and binding obligation
of the Adviser, enforceable in accordance with their respective terms.
17. The execution and delivery of the Shareholder Servicing Agreement, the
Investment Advisory Agreement, the Underwriting Agreement and the Additional
Compensation Agreement by the Adviser, the compliance by the Adviser with all
the provisions thereof and the consummation by the Adviser of the transactions
contemplated thereby do not and will not (A) require any consent, approval,
authorization or other order of, or qualification with, any Massachusetts state
or U.S. federal court or governmental body or agency (except such as may be
required under the securities or Blue Sky laws of the various states or the
National Association of Securities Dealers, Inc. or as have been obtained under
the federal securities laws), (B) conflict with or constitute a breach of any of
the terms or provisions of, or a default under, or result in the imposition of a
lien, charge or encumbrance upon the assets of the Adviser pursuant to any
indenture, loan agreement, mortgage, lease or other agreement or instrument
filed as an exhibit to the Registration Statement, (C) violate or conflict with
the Certificate of Incorporation or By-laws of the Adviser, (D) violate or
conflict with the Delaware Corporation Law statute or any applicable U.S.
federal or Massachusetts state law, rule or regulation which in our experience
is normally applicable in transactions of the type contemplated by the
Underwriting Agreement, or (E) violate or conflict with any judgment, order or
decree specifically naming the Adviser or specifically applicable to the
Adviser's property of which we are aware.
18. To our knowledge, there is no legal or governmental proceeding pending
or threatened against the Adviser that is either: (1) required by the Securities
Act or the 1940 Act and their rules and regulations to be described in the
Registration Statement or Prospectus that is not already described, or: (2)
which would, under Section 9 of the 1940 Act, make the Adviser ineligible to act
as the Trust's investment adviser.
19. Each of the section in the Prospectus entitled "Federal Income Tax
Matters" and the section in the Statement of Additional Information entitled
"Federal Income Tax Matters" is, subject to the qualifications set forth
therein, a fair summary of the principal United States federal income tax rules
currently in effect applicable to the Trust and to the purchase, ownership and
disposition of the Shares.
The foregoing opinions are provided to you, as Managing Representative of
the Underwriters, as a legal opinion only and not as a guaranty or warranty of
the matters discussed herein. These opinions are based upon currently existing
statutes, rules, regulations and judicial decisions and are rendered as of the
date hereof, and we disclaim any obligation to advise you of any change in any
of the foregoing sources of law or subsequent developments in law or changes in
facts or circumstances which might affect any matters or opinions set forth
herein.
In addition to the opinions provided above, we wish to confirm to you:
In connection with the preparation of the Registration Statement, the
Prospectus and the Statement of Additional Information, we have participated in
conferences with officers and representatives of the Trust and the Adviser,
representatives of and counsel for the Underwriters, and representatives of the
independent accountants of the Trust, during which the contents of the
Registration Statement and the Prospectus and the Statement of Additional
Information were discussed. While the limitations inherent in the independent
verification of factual matters and the character of determinations involved in
the registration process are such that we are not passing upon and do not assume
any responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Prospectus or the Statement of
Additional Information, subject to the foregoing and based on such
participation, inquiries and discussions, we advise you that (a) the
Registration Statement, including any Rule 430A Information, the Prospectus and
each amendment or supplement to the Registration Statement and Prospectus as of
their respective effective or issue dates (except for the financial statements,
including the notes and schedules thereto, and other financial, statistical and
accounting data and information, and information relating to the Underwriters or
the method of distribution of the Shares by the Underwriters included therein or
omitted therefrom, as to which we express no view), and the notification on Form
N-8A appear on their face to be appropriately responsive in all material
respects to the requirements of the Securities Act, the 1940 Act and the
applicable rules and regulations of the Commission thereunder, (b) no facts have
come to our attention which have caused us to believe that (i) the Registration
Statement, as of the Effective Date (but after giving effect to changes
incorporated pursuant to Rule 430A under the Securities Act), contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading (except that we express no such view with respect to the
financial statements, including the notes and schedules thereto, and any other
financial, statistical or accounting data and information, or information
relating to the Underwriters or the method of distribution of the Shares by the
Underwriters included therein or omitted therefrom), or (ii) the Prospectus and
Statement of Additional Information, as of the date filed with the Commission
pursuant to Rule 497 under the Securities Act or as of the date hereof,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (except that we express
no such view with respect to the financial statements, including the notes and
schedules thereto, and any other financial, statistical and accounting data
included therein and information relating to the Underwriters or the method of
distribution of the Shares by the Underwriters included therein or omitted
therefrom) and (c) we are not aware of any contract or other document of a
character required by the Securities Act, the 1940 Act and the applicable rules
and regulations of the Commission thereunder to be filed as an exhibit to the
Registration Statement that is not so filed.
This letter is rendered to you, as Managing Representative of the
Underwriters, at the request of the Trust pursuant to the Underwriting
Agreement, and is solely for the benefit of the Underwriters in connection with
the transactions contemplated in the Underwriting Agreement. This letter may not
be relied upon by the Underwriters for any other purpose, nor may this opinion
be provided to, quoted to or relied upon by any other party or entity for any
purpose without our prior written consent. We understand that Skadden, Arps,
Slate, Xxxxxxx & Xxxx (Illinois) in delivering their opinion pursuant to Section
6(f) of the Underwriting Agreement is relying upon our opinions expressed in
paragraphs 3 and 6 above. We consent to such reliance.
Very truly yours,
XXXX AND XXXX LLP
SCHEDULE C
FORM OF ACCOUNTANT'S LETTER
[ ], 2003
The Board of Trustees of
Pioneer Municipal High Income Advantage Trust
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Managing Representative of the Underwriters
Ladies and Gentlemen:
We have audited the statement of assets and liabilities of Pioneer
Municipal High Income Advantage Trust (the "Fund") as of , 2003 included in the
Registration Statement on Form N-2 filed by the Fund under the Securities Act of
1933 (the "Act") (File No. 107812) and under the Investment Company Act of 1940
(the "1940 Act") (File No. 811-21321); such statement and our report with
respect to such statement are included in the Registration Statement.
In connection with the Registration Statement:
1. We are independent public accountants with respect to the Fund within
the meaning of the Act and the applicable rules and regulations thereunder.
2. In our opinion, the statement of assets and liabilities included in the
Registration Statement and audited by us complies as to form in all respects
with the applicable accounting requirements of the Act, the 1940 Act and the
respective rules and regulations thereunder.
3. For purposes of this letter we have read the minutes of all meetings of
the Shareholders, the Board of Trustees and all Committees of the Board of
Trustees of the Fund as set forth in the minute books at the offices of the
Fund, officials of the Fund having advised us that the minutes of all such
meetings through , 2003, were set forth therein.
4. Fund officials have advised us that no financial statements as of any
date subsequent to , 2003, are available. We have made inquiries of certain
officials of the Fund who have responsibility for financial and accounting
matters regarding whether there was any change at , 2003, in the capital shares
or net assets of the Fund as compared with amounts shown in the , 2003,
statement of assets and liabilities included in the Registration Statement,
except for changes that the Registration Statement discloses have occurred or
may occur. On the basis of our inquiries and our reading of the minutes as
described in Paragraph 3, nothing came to our attention that caused us to
believe that there were any such changes.
The foregoing procedures do not constitute an audit made in accordance with
generally accepted auditing standards. Accordingly, we make no representations
as to the sufficiency of the foregoing procedures for your purposes.
This letter is solely for the information of the addressees and to assist
the underwriters in conducting and documenting their investigation of the
affairs of the Fund in connection with the offering of the securities covered by
the Registration Statement, and is not to be used, circulated, quoted or
otherwise referred to within or without the underwriting group for any other
purpose, including but not limited to the registration, purchase or sale of
securities, nor is it to be filed with or referred to in whole or in part in the
Registration Statement or any other document, except that reference may be made
to it in the underwriting agreement or in any list of closing documents
pertaining to the offering of the securities covered by the Registration
Statement.
Very Truly Yours,
