Pioneer Municipal High Income Advantage Trust
[ ] Common Shares of Beneficial Interest
No Par Value
UNDERWRITING AGREEMENT
________________, 2003
UNDERWRITING AGREEMENT
_________________, 2003
UBS Securities LLC
c/o 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 "Trust"), proposes to
issue and sell to the underwriters named in Schedule A annexed hereto (the
"Underwriters") an aggregate of [ ] common shares of beneficial interest (the
"Firm Shares"), no par value (the "Common Shares"), of the Trust. In addition,
solely for the purpose of covering over-allotments, the Trust proposes to grant
to the Underwriters the option to purchase from the Trust up to an additional [
] Common Shares (the "Additional Shares"). The Firm Shares and the Additional
Shares are hereinafter collectively sometimes referred to as the "Shares." The
Shares are described in the Prospectus which is referred to below.
The Trust has filed, 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. 333-107744 and
811-21409), including a prospectus and a statement of additional information,
relating to the Shares. The Trust has furnished to you, for use by the
Underwriters and by dealers, copies of one or more preliminary prospectuses
(including a preliminary statement of additional information) (each thereof,
including such preliminary statement of additional information, being herein
called a "Preliminary Prospectus") relating to the Shares. Except where the
context otherwise requires, the Registration Statement, as amended when it
becomes effective (the "Effective Date"), including all documents filed as a
part thereof 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 Trust with the Commission
pursuant to Rule 497 under the Act or, if no such filing is required, the form
of final prospectus (including the form of final statement of additional
information) included in the "Registration Statement" at the time it became
effective, is herein called the "Prospectus." In addition, the Trust has filed a
Notification of Registration on Form N-8A (the "Notification") pursuant to
Section 8 of the Investment Company Act.
Pioneer Investment Management, Inc. ("Pioneer Investment Management" or the
"Investment Adviser") will act as the Trust's investment adviser pursuant to an
Investment Advisory Agreement by and between the Trust and the Investment
Adviser, dated as of _________________, 2003 (the "Investment Advisory
Agreement"). Xxxxx, Brothers Xxxxxxxx &Co. will act as the custodian (the
"Custodian") of the Trust's cash and portfolio assets pursuant to a Custodian
Agreement, dated July 1, 2002, among Xxxxx Brothers Xxxxxxxx & Co. and the
Pioneer funds name therin, as supplemented as of _________________, 2003 to add
the Trust as a party thereto (the "Custodian Agreement"). Pioneer Investment
Management Shareholder Services, Inc. will act as the Trust's transfer agent
(the "Transfer Agent") pursuant to an Investment Company Services Agreement,
dated as of _________________, 2003 (the "Transfer Agency Agreement"). The
Transfer Agent has engaged [ ] as sub-transfer agent, registrar, shareholder
servicing agent and dividend dispersing agent. The Trust, the Investment Adviser
and Princeton Administrators, LLC have entered into an administration agreement.
The Investment Adviser and UBS Securities LLC (the "Managing Representative")
have entered into a Shareholder Servicing Agreement dated _________________,
2003 (the "Shareholder Servicing Agreement") and an Additional Compensation
Agreement dated _________________, 2003 (the "Additional Compensation
Agreement"). In addition, the Trust has adopted a dividend reinvestment plan
(the "Dividend Reinvestment Plan") pursuant to which holders of Shares may elect
to reinvest their dividends in additional Common Shares of the Trust.
The Trust, 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 Trust agrees to
sell to the respective Underwriters and each of the Underwriters, severally
and not jointly, agrees to purchase from the Trust the aggregate number of
Firm Shares set forth opposite the name of such Underwriter in Schedule A
attached hereto in each case at a purchase price of $[ ] per Share. The
Trust is advised that the Underwriters intend (i) to make a public offering
of their respective portions of the Firm Shares as soon after the effective
date of the Registration Statement as is advisable and (ii) initially to
offer the Firm 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.
In addition, the Trust hereby grants to the several Underwriters the option
to purchase, and upon the basis of the warranties and representa- tions and
subject to the terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally and not jointly, from the Trust, ratably
in accordance with the number of Firm Shares to be purchased by each of them,
all or a portion of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of the Firm Shares, at the
same purchase price per share to be paid by the Underwriters to the Trust for
the Firm Shares. This option may be exercised by you on behalf of the several
Underwriters at any time and from time to time on or before the forty-fifth day
following the date hereof, by written notice to the Trust. Such notice shall set
forth the aggregate number of Additional Shares as to which the option is being
exercised, and the date and time when the Additional Shares are to be delivered
(such date and time being herein referred to as the "Additional Time of
Purchase"); provided, however, that the Additional Time of Purchase shall not be
earlier than the Time of Purchase (as defined below) nor earlier than the second
business day after the date on which the option shall have been exercised nor
later than the tenth business day after the date on which the option shall have
been exercised. The number of Additional Shares to be sold to each Underwriter
shall be the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule A hereto bears to the total
number of Firm Shares (subject, in each case, to such adjustment as you may
determine to eliminate fractional shares).
2. PAYMENT AND DELIVERY. Payment of the purchase price for the Firm Shares
shall be made to the Trust by Federal Trusts wire transfer, against
delivery of the certificates for the Firm Shares to you through the
facilities of the Depository Trust Company ("DTC") for the respective
accounts of the Underwriters. Such payment and delivery shall be made at
10:00 A.M., New York City time on the third business day following the date
of this Underwriting Agreement (unless another date or time shall be agreed
to by you and the Trust). The time at which such payment and delivery are
actually made is hereinafter sometimes called the Time of Purchase.
Certificates for the Firm Shares shall be delivered to you in definitive
form in such names and in such denominations as you shall specify on the
second business day preceding the Time of Purchase. For the purpose of
expediting the checking of the certificates for the Firm Shares by you, the
Trust agrees to make such certificates available to you for such purpose at
least one full business day preceding the Time of Purchase.
Payment of the purchase price for the Additional Shares shall be made at
the Additional Time of Purchase in the same manner and at the same office as the
payment for the Firm Shares. Certificates for the Additional Shares shall be
delivered to you in definitive form in such names and in such denominations as
you shall specify no later than the second business day preceding the Additional
Time of Purchase. For the purpose of expediting the checking of the certificates
for the Additional Shares by you, the Trust agrees to make such certificates
available to you for such purpose at least one full business day preceding the
Additional Time of Purchase. The Time of Purchase and the Additional Time of
Purchase are sometimes referred to herein as the "Closing Dates."
3. REPRESENTATIONS AND WARRANTIES OF THE TRUST AND THE INVESTMENT ADVISER.
Each of the Trust 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 Trust 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 Trust has been duly formed, is validly existing as a Delaware business
trust, with full power and authority to conduct its business as described
in the Registration Statement and Prospectus, and the Trust 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(n)) and the Trust 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 Trust to
obtain, either alone or in the aggregate, would not result in a Material
Adverse Effect. The Trust has no subsidiaries.
(c) The capitalization of the Trust is as set forth in the Registration
Statement and the Prospectus. The Common 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, except to the extent set
forth in the Prospectus, 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, except to the extent set forth in the Prospectus,
nonassessable. No person is entitled to any preemptive or other similar
rights with respect to the Shares.
(d) The Trust 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
Securities 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 Trust 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 Trust.
(e) The Trust has full power and authority to enter into each of this
Underwriting Agreement, the Investment Advisory Agreement, the Custody
Agreement, the Transfer Agency Agreement and the Dividend Reinvestment Plan
(collectively, the "Trust Agreements") and to perform all of the terms and
provisions hereof and thereof to be carried out by it and (i) each Trust
Agreement has been duly and validly authorized, executed and delivered by
or on behalf of the Trust, (ii) each Trust 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 Trust Agreement constitutes the
legal, valid and binding obligation of the Trust 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 Trust of the Trust
Agreements, (ii) the issue and sale by the Trust of the Shares as
contemplated by this Underwriting Agreement and (iii) the performance by
the Trust of its obligations under any of the Trust Agreements or
consummation by the Trust of the other transactions contemplated by the
Trust Agreements conflicts with or will conflict with, or results or will
result in a breach of, the Declaration of Trust or the By-laws of the Trust
or any agreement or instrument to which the Trust is a party or by which
the Trust 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 Trust, 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 Trust 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.
(h) No person has any right to the registration of any securities of the Trust
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 Trust prior to the Closing Date
for the consummation by the Trust of the transactions to be performed by
the Trust or the performance by the Trust of all the terms and provisions
to be performed by or on behalf of it in each case as contemplated in the
Trust Agreements, 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.
(j) The Shares are duly authorized for listing, subject to official notice of
issuance, on the New York Stock Exchange and the Trust's Registration
Statement on Form 8-A, under the Securities Exchange Act of 1934, as
amended and the rules and regulations thereunder (the "Exchange Act"), has
become effective.
(k) [ ], whose report appears in the Prospectus, are independent public
accountants with respect to the Trust as required by the Act and the
Investment Company Act.
(l) 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 Trust
as of the date indicated.
(m) The Trust 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.
(n) 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 Trust, whether or not
arising in the ordinary course of business (a "Material Adverse Effect"),
(ii) there have been no transactions entered into by the Trust 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.
(o) 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 Trust,
threatened against or affecting the Trust, which (i) might result in any
material adverse change in the condition, financial or otherwise, business
affairs or business prospects of the Trust or might materially adversely
affect the properties or assets of the Trust 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.
(p) Except for stabilization transactions conducted by the Managing
Representative, and except for tender offers, Share repurchases and the
issuance or purchase of Common Shares pursuant to the Dividend Reinvestment
Plan effected following the date on which the distribution of the Shares is
completed in accordance with the policies of the Trust as set forth in the
Prospectus, the Trust has not taken and will not take, directly or
indirectly, any action designed or which might be reasonably expected to
cause or result in, or which will constitute, stabilization or manipulation
of the price of the Common Shares in violation of applicable federal
securities laws.
(q) The Trust 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").
(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 Trust or the Investment Adviser or any representative thereof
for use in connection with the public offering or sale of the Shares other
than the definitive client brochure, which was filed with the NASD on [ ],
2003, and the broker selling memo (collectively referred to as the "sales
materials"); the sales materials and 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 Trust or authorized or prepared on behalf of
the Trust 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 Shareholder Servicing
Agreement, the Investment Advisory Agreement and the Additional
Compensation 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 Shareholder Servicing Agreement the Investment Advisory
Agreement and the Additional Compensation 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 Shareholder Servicing Agreement, the
Investment Advisory Agreement and the Additional Compensation 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 Trust as
contemplated by the Investment Advisory Agreement, the Registration
Statement and the Prospectus.
(c) The Investment Adviser has full power and authority to enter into each of
this Underwriting Agreement, the Shareholder Servicing Agreement, the
Investment Advisory Agreement and the Additional Compensation Agreement
(collectively, this Underwriting Agreement, the Shareholder Servicing
Agreement, the Investment Advisory Agreement and the Additional
Compensation 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) Except for stabilization activities conducted by the Managing
Representative and except for tender offers, Share repurchases and the
issuance or purchase of Common Shares pursuant to the Dividend Reinvestment
Plan effected following the date on which the distribution of the Shares is
completed in accordance with the policies of the Trust as set forth in the
Prospectus, the Investment Adviser has not taken and will not take,
directly or indirectly, any action designed, or which might reasonably be
expected to cause or result in, or which will constitute, stabilization or
manipulation of the price of the Common Shares in violation of applicable
federal securities laws.
(i) 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 Trust 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 Trust 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 Trust 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 Trust 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 Trust will provide you satisfactory evidence of the filing.
The Trust 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 Trust
will advise the Managing Representative promptly (1) of the
issuance by the Commission of any order in respect of the Trust
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 Trust 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 Trust, or any representative or attorney of the
Trust, 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 Trust. The Trust 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 Trust 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 Trust 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 Trust 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 Trust) 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 Trust will make generally available to holders of the Trust'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 Trust, Rule 158 under the Act.
(f) The Trust 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 Trust 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) If the transactions contemplated by this Underwriting Agreement
are consummated, the Trust shall pay all costs and expenses
incident to the performance of the obligations of the Trust under
this Underwriting Agreement (to the extent such expenses do not,
in the aggregate, exceed $0.03 per Share), including but not
limited to costs and expenses of or relating to (1) the
preparation, printing and filing of the Registration Statement
and exhibits to it, each Preliminary Prospectus, the Prospectus
and all amendments and supplements thereto, (2) the issuance of
the Shares and the preparation and delivery of certificates for
the Shares, (3) the registration or qualification of the Shares
for offer and sale under the securities or "blue sky" laws of the
jurisdictions referred to in the foregoing paragraph, including
the fees and disbursements of counsel for the Underwriters in
that connection, and the preparation and printing of any
preliminary and supplemental "blue sky" memoranda, (4) the
furnishing (including costs of design, production, shipping and
mailing) to the Underwriters and dealers of copies of each
Preliminary Prospectus relating to the Shares, the sales
materials, the Prospectus, and all amendments or supplements to
the Prospectus, and of the other documents required by this
Section to be so furnished, (5) the filing requirements of the
NASD, in connection with its review of the financing, including
filing fees and the fees, disbursements and other charges of
counsel for the Underwriters in that connection, (6) all transfer
taxes, if any, with respect to the sale and delivery of the
Shares to the Underwriters, (7) the listing of the Shares on the
New York Stock Exchange, and (8) the transfer agent for the
Shares. To the extent the foregoing costs and expenses incident
to the performance of the obligations of the Trust under this
Underwriting Agreement exceed, in the aggregate, $0.03 per Share,
Investment Adviser or an affiliate will pay all such excess costs
and expenses.
(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 Trust
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 Trust or the Investment Adviser to
comply with any material terms or because any of the conditions
in Section 6 are not satisfied, Investment Adviser. or an
affiliate and the Trust, 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 Trust 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 Trust will not offer, sell or register with the Commission,
or announce an offering of, any equity securities of the Trust,
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 and except in
connection with any offering of preferred shares of beneficial
interest as contemplated by the Prospectus.
(j) The Trust will use its best efforts to list the Shares on the New
York Stock Exchange and comply with the rules and regulations of
such exchange.
(k) The Trust 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 Trust 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 each of the Closing Dates, of the
representations of the Trust and the Investment Adviser in this Underwriting
Agreement, to the accuracy and completeness of all statements made by the Trust,
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 Trust 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 Trust except as
set forth in or contemplated by the Prospectus (provided that a
change in the Trust'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 Trust 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 Trust'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 Trust 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 each Closing
Date a certificate, dated such date, of the President, a
Vice-President or Assistant Secretary and the chief financial or
accounting officer of each of the Trust 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 Trust (with respect to the certificates
from such Trust 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 Trust (with respect to
the certificates from such Trust 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 Trust 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 Trust 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 Shareholder Servicing
Agreement, the Investment Advisory Agreement or the Additional
Compensation 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 Trust (with
respect to the certificates from such Trust 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 such Closing Date (to the extent not waived in
writing by the Managing Representative).
(e) You must receive on each Closing Date the opinions dated such
Closing Date substantially in the form of Schedule B to this
Underwriting Agreement from the counsel identified in each such
Schedules.
(f) You must receive on each Closing Date from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP or its affiliated entities an opinion dated
such Closing Date with respect to the Trust, 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
Trust 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 each Closing Date a signed letter from such
accountants, dated as of such 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 such
Closing Date, that would require any change in their letter
referred to in the foregoing sentence.
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 Trust 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 any 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 Trust is suspended by the Commission
or by the principal exchange that lists the 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 any 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 any Closing Date the Shares agreed to be
purchased on such 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 such
Closing Date, and
(a) the number of Shares to be purchased by the defaulting
Underwriters on such 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 such Closing Date exceeds 10% of the Shares to be
purchased by all the Underwriters on such Closing Date, the Trust
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
Trust will have the right to postpone the applicable 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 Trust. If the number of Shares to be
purchased on such Closing Date by such defaulting Underwriter or
Underwriters exceeds 10% of the Shares that the Underwriters are
obligated to purchase on such Closing Date, and none of the
nondefaulting Underwriters or the Trust 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 Trust 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 Trust 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 Trust 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 Trust) or in a Prospectus (the term "Prospectus" for the
purpose of this Section 9 being deemed to include any Preliminary
Prospectus, the sales materials prepared or authorized by the
Trust, the Prospectus and the Prospectus as amended or
supplemented by the Trust), or arises out of or is based upon any
omission or alleged omission to state a material fact required to
be stated in either such Registration Statement or Prospectus or
necessary to make the statements made therein not misleading,
except insofar as any such loss, damage, expense, liability or
claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in
conformity with information furnished in writing by or on behalf
of any Underwriter through you to the Trust 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
Trust 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
Trust or the Investment Adviser pursuant to the foregoing
paragraph, such Underwriter or such person shall promptly
notify the Trust or the Investment Adviser, as the case may
be, in writing of the institution of such Proceeding and the
Trust 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 Trust or the Investment Adviser shall not
relieve the Trust or the Investment Adviser from any liability
which the Trust 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 Trust or
the Investment Adviser, as the case may be, in connection with
the defense of such Proceeding or the Trust 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 Trust
or the Investment Adviser (in which case the Trust 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 Trust or the Investment Adviser and paid
as incurred (it being understood, however, that the Trust 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 Trust 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 Trust
or the Investment Adviser, the Trust 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 Trust and the Investment Adviser, its directors and
officers, and any person who controls the Trust 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 Trust 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
Trust 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 Trust) 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 Trust, the
Investment Adviser, or any such person in respect of which
indemnity may be sought against any Underwriter pursuant to
the foregoing paragraph, the Trust 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 Trust, the
Investment Adviser, or any such person or otherwise. The
Trust, 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
Trust, 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 Trust 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 Trust 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 Trust 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 Trust 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 Trust and the total
underwriting discounts and commissions received by the
Underwriters, bear to the aggregate public offering price of the
Shares. The relative fault of the Trust and the 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 Trust 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 Trust 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 Trust contained in this Agreement shall remain in full force
and effect regardless of any investigation made by or on behalf
of any Underwriter, its partners, directors or officers or any
person (including each partner, officer or director of such
person) who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, or by or
on behalf of the Trust, the Investment Adviser, its directors or
officers or any person who controls the Trust, 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 Trust
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 Trust, the Investment Adviser, against
any of the Trust'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 Trust 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 Trust 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 Trust or the Investment
Adviser, shall be sufficient in all respects if delivered or sent to
the Trust or the Investment Adviser, as the case may be, at the offices
of the Trust 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 Trust consents to the
jurisdiction of such courts and personal service with respect
thereto. The Trust 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 Trust (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 Trust 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 Trust 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 and the Trust 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 Trust or the Investment Adviser, and any successor
or assign of any substantial portion of the Trust'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
Agreement and Declaration of Trust of the 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 Trust 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 Trust.
If the foregoing correctly sets forth the understanding among the Trust
and the Underwriters, please so indicate in the space provided below for the
purpose, whereupon this letter and your acceptance shall constitute a binding
agreement among the Trust, the 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
--------------------------
By: Xxxxx Xxxxxxxx
Title: Managing Director
--------------------------
By: Xxxx X. Reit
Title: Executive Director
SCHEDULE A
Number of Shares
NAME TO BE PURCHASED
UBS Securities LLC [ ]
Total.........................................................[ ]
SCHEDULE B
FORM OF OPINION OF XXXX & XXXX REGARDING THE TRUST AND THE INVESTMENT ADVISER
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 opinion is 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 business 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 [ ] Common Shares of
beneficial interest, no par value per share, of the Trust (collectively, the
"Common Shares") pursuant to the Section 1 of the Underwriting Agreement. 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 August 7, 2003 (File Nos. 333-107744 and 811-21409), and
amendment Nos. [1, 2 and 3] 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 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 Common Shares, the Registration Statement, the
Prospectus, the Statement of Additional Information, the Underwriting Agreement,
records of meetings 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 corporate or trust records of the Trust and
the Adviser and stock books of the Trust and are complete and accurate.
Insofar as this opinion relates 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 "best of 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, as to
the existence or absence of any facts which would contradict the opinions and
statements so expressed, of the attorneys of this firm who have rendered
substantive attention to the transaction to which this opinion relates. 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 this opinion, 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
opinion in paragraphs 9 and 17 below, (i) we are expressing no opinion as to the
enforceability of the indemnification or contribution provisions of the
Underwriting Agreement or the Shareholder Servicing Agreement, (ii) we note that
a court may refuse to enforce, or may limit the application of, the Underwriting
Agreement or certain provisions thereof, as unconscionable or contrary to public
policy, and (iii) we have assumed compliance by all parties with federal and
state securities laws.
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 Common 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 Common
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 [ ] p.m. on [ ],
2003. Our opinion expressed in paragraph 10 below as to the listing of the
Common Shares on the New York Stock Exchange (the "Exchange") is solely based
upon a letter from the Exchange to the Trust, dated [ ], 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 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 between the Adviser and UBS Securities LLC,
dated [ ], 2003 (the "Shareholder Servicing Agreement") and the Additional
Compensation Agreement between the Adviser and UBS Securities LLC, dated [ ],
2003 (the "Additional Compensation Agreement"), are governed by New York law. We
express no opinion with respect to the securities or Blue Sky laws of any state
of the United States, with respect to state or federal antifraud laws (except to
the extent expressly provided in the third to last paragraph below) or with
respect to the approval by the National Association of Securities Dealers, Inc.
of the offering.
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 business 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
Highlights." 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 statute or, to our
knowledge, similar contractual rights granted by the Trust.
3. The Common 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 the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act. To the best of 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
the best of 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 [ ], 2003 (the "Investment Advisory Agreement"), the
Custodian Agreement between the Trust and [ ], dated [ ], 2003 (the
"Custodian Agreement"), the Transfer Agency Agreement between the Trust
and Pioneer Investment Management Shareholder Services, Inc., dated
[ ], 2003 (the "Transfer Agency 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, and
the Transfer Agency 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, and
the Transfer Agency Agreement constitutes a valid and binding agreement
of the Trust, enforceable against the Trust in accordance with its
terms.
9. The execution, delivery and performance of the Investment Advisory
Agreement, Transfer Agency Agreement, 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 Common Shares and the use of the proceeds from the sale of the
Common 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 or By-laws, (D)
violate or conflict with 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 of which we are aware.
10. The Common Shares have been approved for listing on the New York Stock
Exchange and the Trust's Registration Statement on Form 8-A under the
Exchange Act has been declared 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, delivery and performance 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 "U.S. Federal Income Tax
Matters" and the section in the Statement of Additional Information
entitled "U.S. Federal Income Tax Matters" is 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 Common Shares.
20. 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 (other than the financial statements and supporting schedules
including the notes and schedules thereto, or any other financial or
accounting data included therein or omitted therefrom, as to which we
express no opinion), and the notification on Form N-8A complied as to
form in all material respects with the requirements of the Securities
Act, the 1940 Act and the rules and regulations of the Commission
thereunder.
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 the Underwriters, counsel for the Underwriters and the
independent accountants of the Trust, at which conferences we made inquiries of
such persons and others and discussed the contents of the Registration Statement
and the Prospectus and the Statement of Additional Information. 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, no
facts have come to our attention which have caused us to believe that 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, or any other
financial or accounting data included therein or information relating to the
Underwriters or the method of distribution of the Common Shares by the
Underwriters included therein), or that 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, or any
other financial or accounting data included therein or information relating to
the Underwriters or the method of distribution of the Common Shares by the
Underwriters included therein).
This opinion is based upon currently existing statutes, rules,
regulations and judicial decisions and is 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.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters.
This opinion is being furnished to you, as Managing Representative of
the Underwriters, at the request of the Trust pursuant to the Underwriting
Agreement, is solely for the benefit of the Underwriters, and may not be relied
upon by you for any other purpose, or furnished to, quoted to or relied upon by
any other party 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 this opinion as to matters of the Delaware Statutory Trust Act statute. 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 "Trust") as of [ ], 2003
included in the Registration Statement on Form N-2 filed by the Trust under the
Securities Act of 1933 (the "Act") (File No. 333-107744) and under the
Investment Company Act of 1940 (the "1940 Act") (File No. 811-21409); 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
Trust 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 Trust as set forth in the minute books
at the offices of the Trust, officials of the Trust having advised us
that the minutes of all such meetings through [ ], 2003, were set forth
therein.
4. Trust 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 Trust 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 Trust 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 Trust 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,
