Pioneer Municipal High Income Trust
Auction Preferred Shares
No Par Value
UNDERWRITING AGREEMENT
[ ], 2003
UNDERWRITING AGREEMENT
[ ], 2003
UBS Securities LLC
as Managing Representative
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Pioneer Municipal High Income Trust, a Delaware statutory trust
organized and existing under and by virtue of the laws of the State of Delaware
(commonly referred to as a Delaware business trust) (the "Fund"), proposes to
issue and sell to the underwriters named in Schedule A annexed hereto (the
"Underwriters") an aggregate of [ ] preferred shares of beneficial interest of
the Fund, no par value, designated Series A Auction Preferred Shares of the
Fund and [ ] preferred shares of beneficial interest of the Fund, no par value,
designated Series B Auction Preferred Shares of the Fund, each with a
liquidation preference of $25,000 per share (the "Shares"). The Shares are
described in the Prospectus, which is referred to below.
The Fund has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively called the "Act"), and with the provisions of the Investment
Company Act of 1940, as amended, and the rules and regulations thereunder
(collectively called the "Investment Company Act"), with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form N-2
(File Nos. 333-[ ] and 811-21321), including a prospectus and a statement of
additional information, relating to the Shares. The Fund has furnished to you,
for use by the Underwriters and by dealers, copies of one or more preliminary
prospectuses (including a preliminary statement of additional information) (each
thereof, including such preliminary statement of additional information, being
herein called a "Preliminary Prospectus") relating to the Shares. Except where
the context otherwise requires, the Registration Statement, as amended when it
becomes effective (the "Effective Date"), including all documents filed as a
part thereof or incorporated by reference therein, and including any information
contained in a prospectus subsequently filed with the Commission pursuant to
Rule 497 under the Act and deemed to be part of the Registration Statement at
the time of effectiveness pursuant to Rule 430A under the Act is herein called
the Registration Statement, and the prospectus (including the statement of
additional information), in the form filed by the Fund with the Commission
pursuant to Rule 497 under the Act or, if no such filing is required, the form
of final
prospectus (including the form of final statement of additional information)
included in the "Registration Statement" at the time it became effective, is
herein called the "Prospectus." In addition, the Fund has filed a Notification
of Registration on Form N-8A (the "Notification") pursuant to Section 8 of the
Investment Company Act.
Pioneer Investment Management, Inc. ("Pioneer Investment Management"
or the "Investment Adviser") acts as the Fund's investment adviser pursuant to
an Investment Advisory Agreement by and between the Fund and the Investment
Adviser, dated as of July 17, 2003 (the "Investment Advisory Agreement"). Xxxxx,
Brothers Xxxxxxxx & Co. will act as the custodian (the "Custodian") of the
Fund's cash and portfolio assets pursuant to a Custodian Agreement, dated July
1, 2002, among Xxxxx Brothers Xxxxxxxx & Co. and the Pioneer funds named
therein, as supplemented as of July 17, 2003 to add the Fund as a party thereto
(the "Custodian Agreement"). Pioneer Investment Management Shareholder Services,
Inc. will act as the Fund's transfer agent (the "Transfer Agent") pursuant to an
Investment Company Services Agreement, dated as of July 17, 2003 (the "Transfer
Agency Agreement"). The Transfer Agent has engaged Mellon Investor Services LLC
as sub-transfer agent, registrar, shareholder servicing agent and dividend
dispersing agent. The Fund, the Investment Adviser and Princeton Administrators,
LP have entered into an administration agreement, dated July [ ], 2003 (the
"Administration Agreement"). [ ] will act as the Fund's auction agent (the
"Auction Agent") for the Shares pursuant to an Auction Agency Agreement, dated
as of [ ], 2003 (the "Auction Agency Agreement"). The Fund has entered into a
Letter Agreement, dated as of [ ], 2003, with the Depository Trust Company (the
"DTC Agreement"). The Investment Adviser and UBS Securities LLC (the "Managing
Representative") have entered into a Shareholder Servicing Agreement dated July
17, 2003 (the "Shareholder Servicing Agreement") and an Additional Compensation
Agreement dated July 17, 2003 (the "Additional Compensation Agreement").
The Fund, the Investment Adviser and the Underwriters agree as
follows:
1. SALE AND PURCHASE. Upon the basis of the warranties and representations and
subject to the terms and conditions herein set forth, the Fund agrees to
sell to the respective Underwriters and each of the Underwriters, severally
and not jointly, agrees to purchase from the Fund the aggregate number of
Shares set forth opposite the name of such Underwriter in Schedule A
attached hereto in each case at a purchase price of $[ ] per Share. The
Fund is advised that the Underwriters intend (i) to make a public offering
of their respective portions of the Shares as soon after the effective date
of the Registration Statement as is advisable and (ii) initially to offer
the Shares upon the terms set forth in the Prospectus. The Underwriters may
from time to time increase or decrease the public offering price after the
initial public offering to such extent as they may determine.
2. PAYMENT AND DELIVERY. Payment of the purchase price for the Shares shall be
made by the Underwriters to the Fund by Federal Funds wire transfer,
against delivery of the certificates for the Shares to you through the
facilities of the Depository Trust Company ("DTC") for the respective
accounts of the Underwriters. Such payment and delivery shall be made at
10:00 A.M., New York
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City time on the third business day following the date of this Underwriting
Agreement (unless another date or time shall be agreed to by you and the
Fund). The time at which such payment and delivery are actually made is
hereinafter sometimes called the "Time of Purchase" or the "Closing Date."
A certificate in definitive form representing the Shares registered in
the name of Cede & Co., as nominee for DTC, shall be delivered by or on
behalf of the Fund to DTC for the account of the Underwriters. For the
purpose of expediting the checking of the certificates for the Shares by
you, the Fund agrees to make such certificates available to you for such
purpose at least one full business day preceding the Time of Purchase.
3. REPRESENTATIONS AND WARRANTIES OF THE FUND AND THE INVESTMENT ADVISER. Each
of the Fund and the Investment Adviser jointly and severally represents and
warrants to each Underwriter as follows:
(a) On (A) the Effective Date and the date on which the Prospectus is
first filed with the Commission pursuant to Rule 497(b), (h) or (j)
under the Act, as the case may be, (B) the date on which any
post-effective amendment to the Registration Statement (except any
post-effective amendment which is filed with the Commission after the
later of (x) one year from the date of this Underwriting Agreement or
(y) the date on which the distribution of the Shares is completed)
became or becomes effective or any amendment or supplement to the
Prospectus was or is filed with the Commission and (C) the Closing
Dates, the Registration Statement, the Prospectus and any such
amendment or supplement thereto and the Notification complied or will
comply in all material respects with the requirements of the Act and
the Investment Company Act, as the case may be. On the Effective Date
and on the date that any post-effective amendment to the Registration
Statement (except any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of this
Underwriting Agreement or (y) the date on which the distribution of
the Shares is completed) became or becomes effective, neither the
Registration Statement nor any such amendment did or will contain any
untrue statement of a material fact or omit to state a material fact
required to be stated in it or necessary to make the statements in it
not misleading. At the Effective Date and, if applicable, the date the
Prospectus or any amendment or supplement to the Prospectus was or is
filed with the Commission and at the Closing Dates, the Prospectus did
not or will not, as the case may be, contain any untrue statement of a
material fact or omit to state a material fact required to be stated
in it or necessary to make the statements in it, in light of the
circumstances under which they were made, not misleading. The
foregoing representations in this Section 3(a) do not apply to
statements or omissions relating to the Underwriters made in reliance
on and in conformity with information furnished in writing to the Fund
by you expressly for use in the
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Registration Statement, the Prospectus, or any amendments or
supplements thereto, as described in Section 9(f) hereof.
(b) The Fund has been duly formed, is validly existing as a Delaware
business trust, with full power and authority to conduct its business
as described in the Registration Statement and Prospectus, and the
Fund is duly licensed and qualified to do business and in good
standing in each jurisdiction in which its ownership or leasing of
property or its conducting of business requires such qualification,
except where the failure to be so licensed and qualified, either alone
or in the aggregate, would not result in a Material Adverse Effect (as
defined below in Section 3(m)) and the Fund owns, possesses or has
obtained and currently maintains all governmental licenses, permits,
consents, orders, approvals and other authorizations, whether foreign
or domestic, necessary to carry on its business as contemplated in the
Prospectus, except such licenses, permits, consents, orders, approvals
and other authorizations of the Fund to obtain, either alone or in the
aggregate, would not result in a Material Adverse Effect (as defined
below in Section 3(m)). The Fund has no subsidiaries.
(c) The capitalization of the Fund is as set forth in the Registration
Statement and the Prospectus. The common shares of beneficial interest
of the Fund (the "Common Shares") and the Shares conform to the
description of them in the Prospectus. All the outstanding Common
Shares have been duly authorized and are validly issued, fully paid
and nonassessable. The Shares to be issued and delivered to and paid
for by the Underwriters in accordance with this Underwriting Agreement
against payment therefor as provided by this Underwriting Agreement
have been duly authorized and when issued and delivered to the
Underwriters will have been validly issued and will be fully paid and
nonassessable. No person is entitled to any preemptive or other
similar rights with respect to the Shares.
(d) The Fund is duly registered with the Commission under the Investment
Company Act as a diversified, closed-end management investment
company, and, subject to the filing of a final amendment to the
Registration Statement, or any required filing under Rule 430A or Rule
497 under the Act (the "Final Amendment"), if not already filed, all
action under the Act and the Investment Company Act, as the case may
be, necessary under the federal securities laws on the part of the
Fund to make the public offering and consummate the sale of the Shares
as provided in this Underwriting Agreement has or will have been taken
by the Fund.
(e) The Fund has full power and authority to enter into each of this
Underwriting Agreement, the Investment Advisory Agreement, the
Custodian Agreement, the Transfer Agency Agreement, the Administration
Agreement, the Auction Agency Agreement and the DTC Agreement
(collectively, the "Fund Agreements") and to perform all of the terms
and provisions hereof and thereof to be carried out by it and (i) each
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Fund Agreement has been duly and validly authorized, executed and
delivered by or on behalf of the Fund, (ii) each Fund Agreement does
not violate in any material respect any of the applicable provisions
of the Investment Company Act or the Investment Advisers Act of 1940,
as amended, and the rules and regulations thereunder (collectively
called the "Advisers Act"), as the case may be, and (iii) assuming due
authorization, execution and delivery by the other parties thereto,
each Fund Agreement constitutes the legal, valid and binding
obligation of the Fund enforceable in accordance with its terms, (A)
subject, as to enforcement, to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general
equitable principles (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (B) except as rights to indemnity
thereunder may be limited by federal or state securities laws.
(f) None of (i) the execution and delivery by the Fund of the Fund
Agreements, (ii) the issue and sale by the Fund of the Shares as
contemplated by this Underwriting Agreement and (iii) the performance
by the Fund of its obligations under any of the Fund Agreements or
consummation by the Fund of the other transactions contemplated by the
Fund Agreements conflicts with or will conflict with, or results or
will result in a breach of, the Declaration of Trust of the Fund, as
amended through the date hereof (the "Declaration of Trust"), the
[Amended and Restated] Bylaws of the Fund, adopted in connection with
the issuance of the Shares and as amended through the date hereof (the
"Amended Bylaws") or any agreement or instrument to which the Fund is
a party or by which the Fund is bound, or any law, rule or regulation,
or order of any court, governmental instrumentality, securities
exchange or association or arbitrator, whether foreign or domestic,
applicable to the Fund, other than state securities or "blue sky" laws
applicable in connection with the purchase and distribution of the
Shares by the Underwriters pursuant to this Underwriting Agreement.
(g) The Fund is not currently in breach of, or in default under, any
written agreement or instrument to which it is a party or by which it
or its property is bound or affected, except for such breaches or
defaults that do not, either alone or in the aggregate, have a
Material Adverse Effect (as defined below in Section 3(m)).
(h) No person has any right to the registration of any securities of the
Fund because of the filing of the Registration Statement.
(i) No consent, approval, authorization or order of any court or
governmental agency or body or securities exchange or association,
whether foreign or domestic, is required to be obtained by the Fund
prior to the Closing Date for the consummation by the Fund of the
transactions to be performed by the Fund or the performance by the
Fund of all the terms and provisions to
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be performed by or on behalf of it in each case as contemplated in the
Fund Agreements, except such as (i) have been obtained under the Act,
the Investment Company Act or the Advisers Act, and (ii) may be
required under state securities or "blue sky" laws, in connection with
the purchase and distribution of the Shares by the Underwriters
pursuant to this Underwriting Agreement.
(j) Ernst & Young LLP, whose report appears in the Prospectus, are
independent public accountants with respect to the Fund as required by
the Act and the Investment Company Act.
(k) The statement of assets and liabilities included in the Registration
Statement and the Prospectus presents fairly in all material respects,
in accordance with generally accepted accounting principles in the
United States applied on a consistent basis, the financial position of
the Fund as of the date indicated.
(l) The Fund will maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets through an
asset reconciliation procedure or otherwise at reasonable intervals
and appropriate action is taken with respect to any differences.
(m) Since the date as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (i)
there has been no material adverse change in the condition, financial
or otherwise, business affairs or business of the Fund, whether or not
arising in the ordinary course of business (a "Material Adverse
Effect"), (ii) there have been no transactions entered into by the
Fund other than those in the ordinary course of its business and (iii)
there has been no dividend or distribution of any kind declared, paid
or made on any class of its capital shares.
(n) There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other
governmental agency or body, foreign or domestic, now pending, or, to
the knowledge of the Fund, threatened against or affecting the Fund,
which (i) might result in any material adverse change in the
condition, financial or otherwise, business affairs or business
prospects of the Fund or might materially adversely affect the
properties or assets of the Fund or (ii) is of a character required to
be described in the Registration Statement or the Prospectus; and
there are no contracts, franchises or other documents that are of a
character
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required to be described in, or that are required to be filed as
exhibits to, the Registration Statement that have not been described
or filed as required.
(o) The Fund intends to direct the investment of the proceeds of the
offering of the Shares in such a manner as to comply with the
requirements of Subchapter M of the Internal Revenue Code of 1986, as
amended (the "Code").
(p) The Common Shares are listed on the New York Stock Exchange.
(q) The Shares have been, or prior to the Closing Date will be, assigned a
rating of "Aaa" by Xxxxx'x Investors Service, Inc.
(r) No advertising, sales literature or other promotional materials
(excluding road show slides or road show tapes) were authorized or
prepared by or on behalf of the Fund or the Investment Adviser or any
representative thereof for use in connection with the public offering
or sale of the Shares (collectively referred to as the "sales
materials"); any road show slides or road show tapes complied and
comply in all material respects with the applicable requirements of
the Act and the rules and interpretations of the NASD; and no broker
kits, road show slides, road show tapes or sales materials authorized
or prepared by the Fund or authorized or prepared on behalf of the
Fund by the Investment Adviser or any representative thereof for use
in connection with the public offering or sale of the Shares contained
or contains any untrue statement of a material fact or omitted or
omits to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTMENT ADVISER. The Investment
Adviser represents to each Underwriter as follows:
(a) The Investment Adviser has been duly formed, is validly existing as a
corporation under the laws of Delaware with full power and authority
to perform its obligations under this Agreement, the Shareholder
Servicing Agreement, the Investment Advisory Agreement, the
Administration 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
Administration 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
7
Agreement, the Investment Advisory Agreement, the Administration
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 Fund as contemplated by the Investment Advisory Agreement, the
Registration Statement and the Prospectus.
(c) The Investment Adviser has, or at the relevant time had, full power
and authority to enter into each of this Underwriting Agreement, the
Shareholder Servicing Agreement, the Investment Advisory Agreement,
the Administration Agreement and the Additional Compensation Agreement
(collectively, this Underwriting Agreement, the Shareholder Servicing
Agreement, the Investment Advisory Agreement, the Administration
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.
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(e) No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or association,
whether foreign or domestic, is required to be obtained by the
Investment Adviser on or prior to the Closing Date for the
consummation of the transactions contemplated in, or the performance
by the Investment Adviser of its obligations under, any Investment
Adviser Agreement, as the case may be, except such as (i) have been
obtained under the Act, the Investment Company Act or the Advisers
Act, and (ii) may be required by the New York Stock Exchange or under
state securities or "blue sky" laws, in connection with the purchase
and distribution of the Shares by the Underwriters pursuant to this
Underwriting Agreement.
(f) The description of the Investment Adviser and its business, and the
statements attributable to the Investment Adviser, in the Registration
Statement and the Prospectus comply in all material respects with the
requirements of the Act and the Investment Company Act and do not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading (and, solely with respect
to the Prospectus, in the light of the circumstances under which they
were made).
(g) There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other
governmental agency or body, foreign or domestic, now pending or, to
the knowledge of the Investment Adviser, threatened against or
affecting the Investment Adviser of a nature required to be disclosed
in the Registration Statement or Prospectus.
(h) The Investment Adviser has not made available any promotional
materials intended for use only by qualified broker-dealers and
registered representatives thereof by means of an Internet web site or
similar electronic means.
5. AGREEMENTS OF THE PARTIES.
(a) If the Registration Statement relating to the Shares has not yet
become effective, the Fund will promptly file the Final Amendment, if
not previously filed, with the Commission, and will use its best
efforts to cause such Registration Statement to become effective and,
as soon as the Fund is advised, will advise the Managing
Representative when the Registration Statement or any amendment
thereto has become effective. If the Registration Statement has become
effective and the Prospectus contained therein omits certain
information at the time of effectiveness pursuant to Rule 430A under
the Act, the Fund will file a 430A Prospectus pursuant to Rule 497(h)
under the Act as promptly as practicable, but no later than the second
business day following the earlier of the date of the
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determination of the offering price of the Shares or the date the
Prospectus is first used after the Effective Date. If the Registration
Statement has become effective and the Prospectus contained therein
does not so omit such information, the Fund will file a Prospectus
pursuant to Rule 497(b) or (j) under the Act as promptly as
practicable, but no later than the fifth business day following the
date of the later of the Effective Date or the commencement of the
public offering of the Shares after the Effective Date. In either
case, the Fund will provide you satisfactory evidence of the filing.
The Fund will not file with the Commission any Prospectus or any other
amendment (except any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of this
Underwriting Agreement or (y) the date on which distribution of the
Shares is completed) or supplement to the Registration Statement or
the Prospectus unless a copy has first been submitted to the Managing
Representative a reasonable time before its filing and the Managing
Representative has not objected to it in writing within a reasonable
time after receiving the copy.
(b) For the period of three years from the date hereof, the Fund will
advise the Managing Representative promptly (1) of the issuance by the
Commission of any order in respect of the Fund or the Investment
Adviser or which relates to the offering of the Shares, (2) of the
initiation or threatening of any proceedings for, or receipt by the
Fund of any notice with respect to, the suspension of the
qualification of the Shares for sale in any jurisdiction or the
issuance of any order by the Commission suspending the effectiveness
of the Registration Statement, (3) of receipt by the Fund, or any
representative or attorney of the Fund, of any other communication
from the Commission relating to the offering of the Shares, the
Registration Statement, the Notification, any Preliminary Prospectus,
the Prospectus or to the transactions contemplated by this
Underwriting Agreement and (4) the issuance by any court, regulatory
body, administrative agency or other governmental agency or body,
whether foreign or domestic, of any order, ruling or decree, or the
threat to initiate any proceedings with respect thereto, regarding the
offering of the Shares by the Fund. The Fund will make every
reasonable effort to prevent the issuance of any order suspending the
effectiveness of the Registration Statement and, if any such order is
issued, to obtain its lifting as soon as possible.
(c) If not delivered prior to the date of this Underwriting Agreement, the
Fund will deliver to the Managing Representative, without charge, a
signed copy of the Registration Statement and the Notification and of
any amendments (except any post-effective amendment which is filed
with the Commission after the later of (x) one year from the date of
this Underwriting Agreement or (y) the date on which the distribution
of the Shares is completed) to either the Registration Statement or
the Notification (including all exhibits filed with any such document)
and as
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many conformed copies of the Registration Statement and any amendments
thereto (except any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of this
Underwriting Agreement or (y) the date on which the distribution of
the Shares is completed) (excluding exhibits) as the Managing
Representative may reasonably request.
(d) During such period as a prospectus is required by law to be delivered
by an underwriter or a dealer, the Fund will deliver, without charge,
to you, the Underwriters and any dealers, at such office or offices as
you may designate, as many copies of the Prospectus as you may
reasonably request, and, if any event occurs during such period as a
result of which it is necessary to amend or supplement the Prospectus,
in order to make the statements therein, in light of the circumstances
existing when such Prospectus is delivered to a purchaser of Shares,
not misleading in any material respect, or if during such period it is
necessary to amend or supplement the Prospectus to comply with the Act
or the Investment Company Act, the Fund promptly will prepare, submit
to the Managing Representative, file with the Commission and deliver,
without charge, to the Underwriters and to dealers (whose names and
addresses the Managing Representative will furnish to the Fund) to
whom Shares may have been sold by the Underwriters, and to other
dealers on request, amendments or supplements to the Prospectus so
that the statements in such Prospectus, as so amended or supplemented,
will not, in light of the circumstances existing when such Prospectus
is delivered to a purchaser, be misleading in any material respect and
will comply with the Act and the Investment Company Act. Delivery by
the Underwriters of any such amendments or supplements to the
Prospectus will not constitute a waiver of any of the conditions in
Section 6 hereof.
(e) The Fund will make generally available to holders of the Fund's
securities, as soon as practicable but in no event later than the last
day of the 18th full calendar month following the calendar quarter in
which the Effective Date falls, an earnings statement, if applicable,
satisfying the provisions of Section 11(a) of the Act and, at the
option of the Fund, Rule 158 under the Act.
(f) The Fund will take such actions as the Managing Representative
reasonably requests in order to qualify the Shares for offer and sale
under the securities or "blue sky" laws of such jurisdictions as the
Managing Representative reasonably designates; provided that the Fund
shall not be required in connection therewith or as a condition
thereof to qualify as a foreign corporation or to execute a general
consent to service of process in any jurisdiction.
(g) The Fund will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Fund's counsel and accountants in
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connection with the registration of the Shares and all other expenses
in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus
and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or reproducing this Underwriting Agreement and any other
documents in connection with the offering, purchase, sale and delivery
of the Shares (including advertising expenses of the Underwriters, if
any); (iii) the cost of preparing share certificates; (iv) the
expenses (including, but not limited to, travel, hotels and other
accommodations) incurred by the Fund's directors, officers, employees
and other personnel in connection with meetings held with registered
brokers in connection with the offering of the Shares, the preparing
to market and the marketing of the Shares; (v) any fees charged by
securities rating services for rating the Shares; (vi) the fees and
expenses of the DTC and its nominee, the Custodian and the Auction
Agent; and (vii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for. It is understood, however, that, except as
provided in this Section 5 and Section 7 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their
counsel and stock transfer taxes, if any, on resale of any of the
Shares by them, except any advertising expenses connected with any
offers they may make.
(h) If the transactions contemplated by this Underwriting Agreement are
not consummated, except as otherwise provided herein, no party will be
under any liability to any other party, except that (i) if this
Underwriting Agreement is terminated by (A) the Fund or the Investment
Adviser pursuant to any of the provisions hereof (otherwise than
pursuant to Section 8 hereof) or (B) by you or the Underwriters
because of any inability, failure or refusal on the part of the Fund
or the Investment Adviser to comply with any material terms or because
any of the conditions in Section 6 are not satisfied, Pioneer
Investment Management or an affiliate and the Fund, jointly and
severally, will reimburse the Underwriters for all out-of-pocket
expenses (including the reasonable fees, disbursements and other
charges of their counsel) reasonably incurred by them in connection
with the proposed purchase and sale of the Shares and (ii) no
Underwriter who has failed or refused to purchase the Shares agreed to
be purchased by it under this Underwriting Agreement, in breach of its
obligations pursuant to this Underwriting Agreement, will be relieved
of liability to the Fund and the Investment Adviser and the other
Underwriters for damages occasioned by its default.
(i) Without the prior written consent of the Managing Representative, the
Fund will not offer, sell or register with the Commission, or announce
an offering of, any equity securities of the Fund, within 180 days
after the Effective Date, except for the Shares as described in the
Prospectus and
12
any issuances of Common Shares pursuant to the dividend reinvestment
plan established by the Fund.
(j) The Fund will direct the investment of the net proceeds of the
offering of the Shares in such a manner as to comply with the
investment objective and policies of the Fund as described in the
Prospectus.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase the Shares are subject to the accuracy on the date
of this Underwriting Agreement, and on the Closing Date, of the
representations of the Fund and the Investment Adviser in this Underwriting
Agreement, to the accuracy and completeness of all statements made by the
Fund, the Investment Adviser or any of their respective officers in any
certificate delivered to the Managing Representative or its counsel
pursuant to this Underwriting Agreement, to performance by the Fund and the
Investment Adviser of their respective obligations under this Underwriting
Agreement and to each of the following additional conditions:
(a) The Registration Statement must have become effective by 5:30 p.m.,
New York City time, on the date of this Underwriting Agreement or such
later date and time as the Managing Representative consents to in
writing. The Prospectus must have been filed in accordance with Rule
497(b), (h) or (j), as the case may be, under the Act.
(b) No order suspending the effectiveness of the Registration Statement
may be in effect and no proceedings for such purpose may be pending
before or, to the knowledge of counsel to the Underwriters, threatened
by the Commission, and any requests for additional information on the
part of the Commission (to be included in the Registration Statement
or the Prospectus or otherwise) must be complied with or waived to the
reasonable satisfaction of the Managing Representative.
(c) Since the dates as of which information is given in the Registration
Statement and the Prospectus, (i) there must not have been any
material adverse change in the number of outstanding Common Shares or
liabilities of the Fund except as set forth in or contemplated by the
Prospectus (provided that a change in the Fund's net asset value,
liabilities or portfolio securities arising in the course of its
normal investment operations shall not be deemed to be a material
adverse change); (ii) there must not have been any material adverse
change in the general affairs, prospects, management, business,
financial condition or results of operations of the Fund or the
Investment Adviser whether or not arising from transactions in the
ordinary course of business as set forth in or contemplated by the
Prospectus (provided that a change in the Fund's net asset value,
liabilities or portfolio securities arising in the course of its
normal investment operations shall not be deemed to be a material
adverse change); (iii) the Fund must not have sustained any material
interference with its business
13
from any court or from legislative or other governmental action, order
or decree, whether foreign or domestic, not described in the
Registration Statement and Prospectus; and (iv) there must not have
occurred any event that makes untrue or incorrect in any material
respect any statement or information contained in the Registration
Statement or Prospectus or that is not reflected in the Registration
Statement or Prospectus but should be reflected therein in order to
make the statements or information therein (in the case of the
Prospectus, in light of the circumstances in which they were made) not
misleading in any material respect; if, in the judgment of the
Managing Representative, any such development referred to in clause
(i), (ii), (iii) or (iv) of this paragraph (c) makes it impracticable
or inadvisable to consummate the sale and delivery of the Shares
pursuant to this Underwriting Agreement by the Underwriters, at the
initial public offering price of the Shares.
(d) The Managing Representative must have received on the Closing Date a
certificate, dated such date, of the President or a Vice-President and
the chief financial or accounting officer of each of the Fund and the
Investment Adviser certifying in their capacity as such officers that
(i) the signers have examined the Registration Statement, the
Prospectus, and this Underwriting Agreement, (ii) the representations
of the Fund (with respect to the certificates from such Fund officers)
and the representations of the Investment Adviser (with respect to the
certificates from such officers of the Investment Adviser) in this
Underwriting Agreement are accurate on and as of the date of the
certificate, (iii) there has not been any material adverse change in
the general affairs, prospects, management, business, financial
condition or results of operations of the Fund (with respect to the
certificates from such Fund officers) or the Investment Adviser (with
respect to the certificates from such officers of the Investment
Adviser), which change would materially and adversely affect the
ability of the Fund or the Investment Adviser, as the case may be, to
fulfill its obligations under this Underwriting Agreement or the
Investment Advisory Agreement, whether or not arising from
transactions in the ordinary course of business, (iv) with respect to
the Fund only, no order suspending the effectiveness of the
Registration Statement, or prohibiting the sale of any of the Shares
has been issued and no proceedings for any such purpose are pending
before or threatened by the Commission or any other regulatory body,
whether foreign or domestic, (v) no order having a material adverse
effect on the ability of the Investment Adviser to fulfill its
obligations under this Underwriting Agreement, the Shareholder
Servicing Agreement, the Investment Advisory Agreement, the
Administration 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 Fund (with respect to the certificates from such Fund officers)
and the Investment Adviser (with respect to the certificates from such
officers of
14
the Investment Adviser) has performed all of its respective agreements
that this Underwriting Agreement requires it to perform by the Closing
Date (to the extent not waived in writing by the Managing
Representative).
(e) You must receive on the Closing Date the opinions dated such Closing
Date substantially in the form of Schedule B to this Underwriting
Agreement from the counsel identified in such Schedule.
(f) You must receive on the Closing Date from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP or its affiliated entities an opinion dated the
Closing Date with respect to the Fund, the Shares, the Registration
Statement and the Prospectus, this Underwriting Agreement and the form
and sufficiency of all proceedings taken in connection with the sale
and delivery of the Shares. Such opinion and proceedings shall fulfill
the requirements of this Section 6(f) only if such opinion and
proceedings are satisfactory in all respects to the Managing
Representative. The Fund and the Investment Adviser must have
furnished to such counsel such documents as counsel may reasonably
request for the purpose of enabling them to render such opinion.
(g) The Managing Representative must receive on the date this Underwriting
Agreement is signed and delivered by you a signed letter, dated such
date, substantially in the form of Schedule C to this Underwriting
Agreement from the firm of accountants designated in such Schedule.
The Managing Representative also must receive on the Closing Date a
signed letter from such accountants, dated as of the Closing Date,
confirming on the basis of a review in accordance with the procedures
set forth in their earlier letter that nothing has come to their
attention during the period from a date not more than five business
days before the date of this Underwriting Agreement, specified in the
letter, to a date not more than five business days before the Closing
Date, that would require any change in their letter referred to in the
foregoing sentence.
(h) The Shares shall have been accorded a rating of "Aaa" by Xxxxx'x
Investors Service, Inc. and a letter to such effect, dated on or
before the Closing Date, shall have been delivered to the Managing
Representative.
(i) As of the Closing Date, and assuming the receipt of the net proceeds
from the sale of the Shares, the 1940 Act Fund Preferred Shares Asset
Coverage and the Fund Preferred Shares Basic Maintenance Amount (each
as defined in the Prospectus) each will be met.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Underwriting Agreement will comply only if they are in
form and scope reasonably satisfactory to counsel for the Underwriters,
provided that
15
any such documents, forms of which are annexed hereto, shall be deemed
satisfactory to such counsel if substantially in such form.
7. TERMINATION. This Underwriting Agreement may be terminated by the Managing
Representative by notifying the Fund at any time:
(a) before the later of the effectiveness of the Registration Statement
and the time when any of the Shares are first generally offered
pursuant to this Underwriting Agreement by the Managing Representative
to dealers by letter or telegram;
(b) at or before the Closing Date if, in the sole judgment of the Managing
Representative, payment for and delivery of any Shares is rendered
impracticable or inadvisable because (i) trading in the equity
securities of the Fund is suspended by the Commission or by the
principal exchange that lists the Common Shares, (ii) trading in
securities generally on the New York Stock Exchange or the Nasdaq
Stock Market shall have been suspended or limited or minimum or
maximum prices shall have been generally established on such exchange
or over-the-counter market, (iii) additional material governmental
restrictions, not in force on the date of this Underwriting Agreement,
have been imposed upon trading in securities or trading has been
suspended on any U.S. securities exchange, (iv) a general banking
moratorium has been established by U.S. federal or New York
authorities or (v) any material adverse change in the financial or
securities markets in the United States or in political, financial or
economic conditions in the United States or any outbreak or material
escalation of hostilities or declaration by the United States of a
national emergency or war or other calamity or crisis shall have
occurred the effect of any of which is such as to make it, in the sole
judgment of the Managing Representative, impracticable or inadvisable
to market the Shares on the terms and in the manner contemplated by
the Prospectus; or
(c) at or before the Closing Date, if any of the conditions specified in
Section 6 have not been fulfilled when and as required by this
Underwriting Agreement.
8. SUBSTITUTION OF UNDERWRITERS. If one or more of the Underwriters fails
(other than for a reason sufficient to justify the termination of this
Underwriting Agreement) to purchase on the Closing Date the Shares agreed
to be purchased on the Closing Date by such Underwriter or Underwriters,
the Managing Representative may find one or more substitute underwriters to
purchase such Shares or make such other arrangements as the Managing
Representative deems advisable, or one or more of the remaining
Underwriters may agree to purchase such Shares in such proportions as may
be approved by the Managing Representative, in each case upon the terms set
forth in this Underwriting Agreement. If no such arrangements have been
made within 36 hours after the Closing Date, and
16
(a) the number of Shares to be purchased by the defaulting Underwriters on
the Closing Date does not exceed 10% of the Shares that the
Underwriters are obligated to purchase on such Closing Date, each of
the nondefaulting Underwriters will be obligated to purchase such
Shares on the terms set forth in this Underwriting Agreement in
proportion to their respective obligations under this Underwriting
Agreement, or
(b) the number of Shares to be purchased by the defaulting Underwriters on
the Closing Date exceeds 10% of the Shares to be purchased by all the
Underwriters on the Closing Date, the Fund will be entitled to an
additional period of 24 hours within which to find one or more
substitute underwriters reasonably satisfactory to the Managing
Representative to purchase such Shares on the terms set forth in this
Underwriting Agreement.
In any such case, either the Managing Representative or the Fund will
have the right to postpone the Closing Date for not more than five business
days in order that necessary changes and arrangements (including any
necessary amendments or supplements to the Registration Statement or the
Prospectus) may be effected by the Managing Representative and the Fund. If
the number of Shares to be purchased on the Closing Date by such defaulting
Underwriter or Underwriters exceeds 10% of the Shares that the Underwriters
are obligated to purchase on the Closing Date, and none of the
nondefaulting Underwriters or the Fund makes arrangements pursuant to this
Section within the period stated for the purchase of the Shares that the
defaulting Underwriters agreed to purchase, this Underwriting Agreement
will terminate without liability on the part of any nondefaulting
Underwriter, the Fund or the Investment Adviser, except as provided in
Sections 6(h) and 9 hereof. This Section will not affect the liability of
any defaulting Underwriter to the Fund or the nondefaulting Underwriters
arising out of such default. A substitute underwriter will become a
Underwriter for all purposes of this Underwriting Agreement.
9. INDEMNITY AND CONTRIBUTION.
(a) Each of the Fund and the Investment Adviser, jointly and severally,
agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, and the successors and assigns of all of the
foregoing persons from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation)
which, jointly or severally, any such Underwriter or any such person
may incur under the Act, the Exchange Act, the Investment Company Act,
the Advisers Act, the common law or otherwise, insofar as such loss,
damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment
17
thereof by the Fund) or in a Prospectus (the term "Prospectus" for the
purpose of this Section 9 being deemed to include any Preliminary
Prospectus, any sales materials prepared or authorized by the Fund,
the Prospectus and the Prospectus as amended or supplemented by the
Fund), or arises out of or is based upon any omission or alleged
omission to state a material fact required to be stated in either such
Registration Statement or Prospectus or necessary to make the
statements made therein not misleading, except insofar as any such
loss, damage, expense, liability or claim arises out of or is based
upon any untrue statement or alleged untrue statement of a material
fact contained in and in conformity with information furnished in
writing by or on behalf of any Underwriter through you to the Fund or
the Investment Adviser expressly for use with reference to such
Underwriter in such Registration Statement or such Prospectus or
arises out of or is based upon any omission or alleged omission to
state a material fact in connection with such information required to
be stated in such Registration Statement or such Prospectus or
necessary to make such information not misleading, provided, however,
that the indemnity agreement contained in this subsection (a) with
respect to any Preliminary Prospectus or amended Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or to
the benefit of any person controlling such Underwriter) from whom the
person asserting any such loss, damage, expense, liability or claim
purchased the Shares which is the subject thereof if the Prospectus
corrected any such alleged untrue statement or omission and if such
Underwriter failed to send or give a copy of the Prospectus to such
person at or prior to the written confirmation of the sale of such
Shares to such person, unless the failure is the result of
noncompliance by the Fund with Section 5(d) hereof.
If any action, suit or proceeding (together, a "Proceeding") is
brought against an Underwriter or any such person in respect of which
indemnity may be sought against the Fund or the Investment Adviser
pursuant to the foregoing paragraph, such Underwriter or such person
shall promptly notify the Fund or the Investment Adviser, as the case
may be, in writing of the institution of such Proceeding and the Fund
or the Investment Adviser shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses; provided,
however, that the omission to so notify the Fund or the Investment
Adviser shall not relieve the Fund or the Investment Adviser from any
liability which the Fund or the Investment Adviser may have to any
Underwriter or any such person or otherwise and, unless only to the
extent that, such omission results in the forfeiture of substantive
rights or defenses by the indemnifying party. Such Underwriter or such
person shall have the right to employ its or their own counsel in any
such case, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or of such person unless the employment of
such counsel shall have been authorized in writing by the Fund or the
Investment
18
Adviser, as the case may be, in connection with the defense of such
Proceeding or the Fund or the Investment Adviser shall not have,
within a reasonable period of time in light of the circumstances,
employed counsel to have charge of the defense of such Proceeding or
such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different
from, additional to or in conflict with those available to the Fund or
the Investment Adviser (in which case the Fund or the Investment
Adviser shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by the Fund or the
Investment Adviser and paid as incurred (it being understood, however,
that the Fund or the Investment Adviser shall not be liable for the
expenses of more than one separate counsel (in addition to any local
counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties
to such Proceeding). None of the Fund or the Investment Adviser shall
be liable for any settlement of any Proceeding effected without its
written consent but if settled with the written consent of the Fund or
the Investment Adviser, the Fund or the Investment Adviser, as the
case may be, agrees to indemnify and hold harmless any Underwriter and
any such person from and against any loss or liability by reason of
such settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement
of any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt by
such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and
(iii) such indemnified party shall have given the indemnifying party
at least 30 days' prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that
are the subject matter of such Proceeding and does not include an
admission of fault, culpability or a failure to act, by or on behalf
of such indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Fund and the Investment Adviser, its directors and
officers, and any person who controls the Fund or the Investment
Adviser within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, and the successors and assigns of all of the
foregoing persons from and against any loss, damage, expense,
liability or claim (including the reasonable cost
19
of investigation) which, jointly or severally, the Fund or the
Investment Adviser or any such person may incur under the Act, the
Exchange Act, the Investment Company Act, the Advisers Act, the common
law or otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in and in conformity
with information furnished in writing by or on behalf of such
Underwriter through you to the Fund or the Investment Adviser
expressly for use with reference to such Underwriter in the
Registration Statement (or in the Registration Statement as amended by
any post-effective amendment thereof by the Fund) or in a Prospectus,
or arises out of or is based upon any omission or alleged omission to
state a material fact in connection with such information required to
be stated in such Registration Statement or such Prospectus or
necessary to make such information not misleading.
If any Proceeding is brought against the Fund, the Investment
Adviser, or any such person in respect of which indemnity may be
sought against any Underwriter pursuant to the foregoing paragraph,
the Fund or the Investment Adviser or such person shall promptly
notify such Underwriter in writing of the institution of such
Proceeding and such Underwriter shall assume the defense of such
Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and
expenses; provided, however, that the omission to so notify such
Underwriter shall not relieve such Underwriter from any liability
which such Underwriter may have to the Fund, the Investment Adviser,
or any such person or otherwise. The Fund, the Investment Adviser, or
such person shall have the right to employ its own counsel in any such
case, but the fees and expenses of such counsel shall be at the
expense of the Fund, the Investment Adviser, or such person, as the
case may be, unless the employment of such counsel shall have been
authorized in writing by such Underwriter in connection with the
defense of such Proceeding or such Underwriter shall not have, within
a reasonable period of time in light of the circumstances, employed
counsel to have charge of the defense of such Proceeding or such
indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from
or additional to or in conflict with those available to such
Underwriter (in which case such Underwriter shall not have the right
to direct the defense of such Proceeding on behalf of the indemnified
party or parties, but such Underwriter may employ counsel and
participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Underwriter), in any of which
events such fees and expenses shall be borne by such Underwriter and
paid as incurred (it being understood, however, that such Underwriter
shall not be liable for the expenses of more than one separate counsel
(in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding).
20
No Underwriter shall be liable for any settlement of any such
Proceeding effected without the written consent of such Underwriter
but if settled with the written consent of such Underwriter, such
Underwriter agrees to indemnify and hold harmless the Fund or the
Investment Adviser and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable
for any settlement of any Proceeding effected without its written
consent if (i) such settlement is entered into more than 60 business
days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder
by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such Proceeding.
(c) If the indemnification provided for in this Section 9 is unavailable
to an indemnified party under subsections (a) and (b) of this Section
9 in respect of any losses, damages, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
damages, expenses, liabilities or claims (i) in such proportion as is
appropriate to reflect the relative benefits received by the Fund and
the Investment Adviser on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault
of the Fund and the Investment Adviser on the one hand and of the
Underwriters on the other in connection with the statements or
omissions which resulted in such losses, damages, expenses,
liabilities or claims, as well as any other relevant equitable
considerations. The relative benefits received by the Fund or the
Investment Adviser on the one hand and the Underwriters on the other
shall be deemed to be in the same respective proportions as the total
proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Fund and
the total underwriting discounts and commissions received by the
Underwriters, bear to the aggregate public offering price of the
Shares. The relative fault of the Fund and the Investment Adviser on
the
21
one hand and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or omission or alleged
omission relates to information supplied by the Fund or the Investment
Adviser or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a
result of the losses, damages, expenses, liabilities and claims
referred to in this subsection shall be deemed to include any legal or
other fees or expenses reasonably incurred by such party in connection
with investigating, preparing to defend or defending any Proceeding.
(d) The Fund and the Investment Adviser and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in subsection (c) above. Notwithstanding
the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the fees and commissions received
by such Underwriter. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 9 are several in proportion to their
respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this Section 9
and the covenants, warranties and representations of the Fund
contained in this Agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors or officers or any person
(including each partner, officer or director of such person) who
controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, or by or on behalf of the Fund, the
Investment Adviser, its directors or officers or any person who
controls the Fund, the Investment Adviser within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and shall
survive any termination of this Agreement or the issuance and delivery
of the Shares. The Fund or the Investment Adviser and each Underwriter
agree promptly to notify each other of the commencement of any
Proceeding against it and, in the case of the Fund, the Investment
Adviser, against any of the Fund's, the Investment Adviser's officers
or directors in connection with the issuance and sale of the Shares,
or in connection with the Registration Statement or Prospectus.
(f) The Fund and the Investment Adviser each acknowledge that the
statements with respect to (1) the public offering of the Shares as
set forth
22
on the cover page of and (2) the statements relating to stabilization,
to selling concessions and reallowances of selling concessions and
with respect to discretionary accounts under the caption
"Underwriting" in the Prospectus constitute the only information
furnished in writing to the Fund by the Managing Representative on
behalf of the Underwriters expressly for use in such document. The
Underwriters severally confirm that these statements are correct in
all material respects and were so furnished by or on behalf of the
Underwriters severally for use in the Prospectus.
(g) Notwithstanding any other provisions in this Section 9, no party shall
be entitled to indemnification or contribution under this Underwriting
Agreement against any loss, claim, liability, expense or damage
arising by reason of such person's willful misfeasance, bad faith,
gross negligence or reckless disregard in the performance of its
duties hereunder.
10. NOTICES. Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing or by telegram and, if to the
Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention:
Syndicate Department and, if to the Fund or the Investment Adviser, shall
be sufficient in all respects if delivered or sent to the Fund or the
Investment Adviser, as the case may be, at the offices of the Fund or the
Investment Adviser at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxxxxx.
11. GOVERNING LAW; CONSTRUCTION. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way
relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter
of convenience of reference and are not a part of this Agreement.
12. SUBMISSION TO JURISDICTION. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of
the State of New York located in the City and County of New York or in the
United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and
the Fund consents to the jurisdiction of such courts and personal service
with respect thereto. The Fund hereby consents to personal jurisdiction,
service and venue in any court in which any Claim arising out of or in any
way relating to this Agreement is brought by any third party against UBS
Securities LLC or any indemnified party. Each of UBS Securities LLC, the
Fund (on its behalf and, to the extent permitted by applicable law, on
behalf of its stockholders and affiliates) and the Investment Adviser (on
its behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) waives all right to trial by jury in any
action, proceeding or counterclaim (whether based upon contract, tort or
otherwise) in any way arising out of or relating to this Agreement. Each of
the Fund and the Investment Adviser agrees that a final judgment in any
such action, proceeding or
23
counterclaim brought in any such court may be enforced in any other courts
in the jurisdiction of which the Fund or the Investment Adviser, as the
case may be, is or may be subject, by suit upon such judgment.
13. PARTIES AT INTEREST. The Agreement herein set forth has been and is made
solely for the benefit of the Underwriters and the Fund and to the extent
provided in Section 9 hereof the controlling persons, directors and
officers referred to in such section, and their respective successors,
assigns, heirs, personal representatives and executors and administrators.
No other person, partnership, association or corporation (including a
purchaser, as such purchaser, from any of the Underwriters) shall acquire
or have any right under or by virtue of this Agreement.
14. COUNTERPARTS. This Agreement may be signed by the parties in one or more
counterparts which together shall constitute one and the same agreement
among the parties.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Underwriters, the Fund or the Investment Adviser, and any successor or
assign of any substantial portion of the Fund's, the Investment Adviser's,
or any of the Underwriters' respective businesses and/or assets.
16. DISCLAIMER OF LIABILITY OF TRUSTEES AND BENEFICIARIES. A copy of the
Declaration of Trust is on file with the Secretary of The State of
Delaware, and notice hereby is given that this Underwriting Agreement is
executed on behalf of the Trustees of the Fund as Trustees and not
individually and that the obligations or arising out of this Underwriting
Agreement are not binding upon any of the Trustees or beneficiaries
individually but are binding only upon the assets and properties of the
Fund.
24
If the foregoing correctly sets forth the understanding among the Fund and
the Underwriters, please so indicate in the space provided below for the
purpose, whereupon this letter and your acceptance shall constitute a binding
agreement among the Fund, the Investment Adviser and the Underwriters,
severally.
Very truly yours,
PIONEER MUNICIPAL HIGH INCOME
TRUST
--------------------------
By:
Title:
PIONEER INVESTMENT
MANAGEMENT, INC.
--------------------------
By:
Title:
25
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: UBS SECURITIES LLC
--------------------------
By: Xxxxx Xxxxxxxx
Title: Managing Director
--------------------------
By: Xxxx X. Reit
Title: Executive Director
26
SCHEDULE A
NUMBER OF SHARES TO BE
UNDERWRITER PURCHASED
----------- ---------
UBS Securities LLC [ ]
[ ] [ ]
[ ] [ ]
====
TOTAL [ ]
A-1
SCHEDULE B
FORM OF OPINION OF
XXXX & XXXX LLP REGARDING THE FUND
[ ], 2003
UBS Securities LLC
As Representative of the
Several Underwriters
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Pioneer Investment Management, Inc.
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 Trust, a Delaware statutory trust (the "Trust").
Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings ascribed to them in the Underwriting Agreement.
We have acted as counsel for the Trust and the Adviser in connection with
the sale to the Underwriters by the Trust of an aggregate of [ ] preferred
shares of beneficial interest of the Trust, no par value, designated Series ___
Auction Preferred Shares of the Trust, [ ] preferred shares of beneficial
interest of the Trust, no par value, designated Series ___ Auction Preferred
Shares of the Trust, [ ] preferred shares of beneficial interest of the
Trust, [ ] preferred shares of beneficial interest of the Trust and [ ]
preferred shares of beneficial interest of the Trust, no par value, designated
Series ___ Auction Preferred Shares of the Trust, each with a liquidation
preference of $[ ] per share (collectively, the "Shares"), all 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 8,
2003 (File Nos. 333-107812 and 811-21321), and amendment Nos. [1 and 2] thereto,
which Registration Statement became effective on [ ], 2003 (the "Effective
Date"). Such Registration Statement, in the form in which it became effective,
is referred to herein as the "Registration Statement," and the prospectus dated
[ ], 2003 and statement of additional information dated [ ], 2003,
included therein, as filed pursuant to Rule 497 of the Securities Act of 1933,
as amended (the "Securities Act"), on [ ], 2003, are referred to herein as
the "Prospectus" and the "Statement of Additional Information."
B-1
We have examined and relied upon the Declaration of Trust and Amended
By-laws of the Trust, each as amended to date, records of meetings or written
actions of shareholders and of the Board of Trustees of the Trust, proceedings
of the Trust in connection with the authorization and issuance of the Shares,
the Registration Statement, the Prospectus, the Statement of Additional
Information, the Underwriting Agreement, 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 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 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.
B-2
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 paragraph 9
below, (i) we are expressing no opinion as to the enforceability of the
indemnification or contribution provisions of the Underwriting 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, (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 16 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
B-3
solely on a certificate of an officer of the Trust. Our opinion expressed in
paragraph 2 below as to issued and outstanding shares of capital stock 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 opinion expressed in paragraph 4 below as to the effectiveness of the
Registration Statement under the Securities Act is based solely upon oral advice
from Xx. Xxxxx Xxxxxxxx at the Division of Investment Management of the
Commission that such Registration Statement was 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 is solely based upon a
letter from the Exchange to the Trust dated [ ], 2003. Our opinion in paragraph
17 is based solely upon the Commission's Investment Adviser Public Disclosure
Website as of the date of this opinion.
We are opining herein solely with respect to the state laws of The
Commonwealth of Massachusetts, the Delaware Statutory Trust Act statute, the
Delaware Corporation Law statute, and the federal laws of the United States of
America. To the extent that the laws of any other jurisdiction govern any of the
matters as to which we express an opinion below, we have assumed for purposes of
this opinion, with your permission and without independent investigation, that
the laws of such jurisdiction are identical to the substantive state laws of The
Commonwealth of Massachusetts, and we express no opinion as to whether such
assumption is reasonable or correct. We note that the Underwriting Agreement,
the Shareholder Servicing Agreement between the Adviser and UBS Securities LLC,
dated July 22, 2003 (the "Shareholder Servicing Agreement") and the Additional
Compensation Agreement between the Adviser and UBS Securities LLC, dated July
22, 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
Prospectus under the caption "The Trust". 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
B-4
preemptive or similar statutory rights under the Massachusetts
Business Trust statute or, to our knowledge, similar contractual
rights granted by the Trust.
3. The Shares have been duly authorized and, when issued and delivered to
the Underwriters against payment therefor pursuant to the Underwriting
Agreement, will be validly issued and fully paid.
4. The Registration Statement has been declared effective under the
Securities Act. Any required filing of the Prospectus pursuant to Rule
497(c) or Rule 497(h) has been made in the manner and within the time
period required by Rule 497. To 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 therefore been initiated or
threatened by the Commission.
6. The Underwriting Agreement has been duly authorized, executed and
delivered by the Trust.
7. Each of the Investment Advisory Agreement between the Trust and the
Adviser, dated July 22, 2003 (the "Investment Advisory Agreement"),
the Custodian Agreement, dated as of July 1, 2002, among Xxxxx
Brothers Xxxxxxxx & Co. and the Pioneer mutual funds named therein, as
supplemented as of July 8, 2003 to add the Trust as a party thereto
(the "Custodian Agreement"), the Transfer Agency Agreement between the
Trust and Pioneer Investment Management Shareholder Services, Inc.,
dated July 22, 2003 (the "Transfer Agency Agreement"), the Auction
Agency Agreement between the Trust and Deutsche Bank Trust Company
Americas, dated [ ], 2003 (the "Auction Agency Agreement"), the
Letter Agreement between the Trust and the Depository Trust Company,
dated [ ], 2003 (the "DTC Agreement"), the Underwriting
Agreement, the Shareholder Servicing Agreement, and the Additional
Compensation Agreement comply in all material respects with all
applicable provisions of the 1940 Act, the Investment Advisers Act of
1940, as amended (the "Advisers Act"), and the rules and regulations
of the Commission under the 1940 Act and the Advisers Act.
B-5
8. Each of the Investment Advisory Agreement, the Custodian Agreement,
the Transfer Agency Agreement, the Auction Agency Agreement and the
DTC Agreement has been duly authorized by all requisite action on the
part of the Trust, executed and delivered by the Trust, as of the date
noted therein. Assuming due authorization, execution and delivery by
the other parties thereto, each of the Investment Advisory Agreement,
the Custodian Agreement, the Transfer Agency Agreement, the Auction
Agency Agreement and the DTC Agreement constitutes a valid and binding
agreement of the Trust, enforceable against the Trust in accordance
with its terms.
9. The execution, 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 Shares and the use of the proceeds from the sale of the Shares as
described in the Prospectus under the caption "Use of Proceeds") do
not and will not (A) require any consent, approval, authorization or
other order of, or qualification with, any Massachusetts state or U.S.
federal court or governmental body or agency (except such as may be
required under the securities or Blue Sky laws of the various states
or the National Association of Securities Dealers, Inc. or as have
been obtained under the federal securities laws), (B) conflict with or
constitute a breach of any of the terms or provisions of, or a default
under, or result in the imposition of a lien, charge or encumbrance
upon the assets of the Trust pursuant to any indenture, loan
agreement, mortgage, lease or other agreement or instrument filed as
an exhibit to the Registration Statement, (C) violate or conflict with
the Declaration of Trust 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 its property of which we are aware.
10. The Common Shares are listed on the New York Stock Exchange.
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 caption "Description of the
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.
B-6
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. 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 Shares.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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
B-7
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.
20. 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.
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 or the Prospectus, 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 that the Prospectus, as of the date it was 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,
B-8
including the notes and schedules thereto, or any other financial or accounting
data 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 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,
B-9
SCHEDULE C
FORM OF ACCOUNTANT'S LETTER
[ ], 2003
The Board of Trustees of
Pioneer Municipal High Income 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 Trust (the "Fund") as of _________, 2003 included in the
Registration Statement on Form N-2 filed by the Fund under the Securities Act of
1933 (the "Act") (File No. 333-[ ]) and under the Investment Company Act of 1940
(the "1940 Act") (File No. 811-21321); such statement and our report with
respect to such statement are included in the Registration Statement.
In connection with the Registration Statement:
1. We are independent public accountants with respect to the Fund
within the meaning of the Act and the applicable rules and regulations
thereunder.
2. In our opinion, the statement of assets and liabilities included
in the Registration Statement and audited by us complies as to form in all
respects with the applicable accounting requirements of the Act, the 1940
Act and the respective rules and regulations thereunder.
3. For purposes of this letter we have read the minutes of all
meetings of the Shareholders, the Board of Trustees and all Committees of
the Board of Trustees of the Fund as set forth in the minute books at the
offices of the Fund, officials of the Fund having advised us that the
minutes of all such meetings through _________, 2003, were set forth
therein.
4. Fund officials have advised us that no financial statements as of
any date subsequent to _________, 2003, are available. We have made
inquiries of certain officials of the Fund who have responsibility for
financial and accounting matters regarding whether there was any change at
_________, 2003, in the capital
C-1
shares or net assets of the Fund as compared with amounts shown in the
_________, 2003, statement of assets and liabilities included in the
Registration Statement, except for changes that the Registration Statement
discloses have occurred or may occur. On the basis of our inquiries and our
reading of the minutes as described in Paragraph 3, nothing came to our
attention that caused us to believe that there were any such changes.
The foregoing procedures do not constitute an audit made in accordance with
generally accepted auditing standards. Accordingly, we make no representations
as to the sufficiency of the foregoing procedures for your purposes.
This letter is solely for the information of the addressees and to assist
the underwriters in conducting and documenting their investigation of the
affairs of the Fund in connection with the offering of the securities covered by
the Registration Statement, and is not to be used, circulated, quoted or
otherwise referred to within or without the underwriting group for any other
purpose, including but not limited to the registration, purchase or sale of
securities, nor is it to be filed with or referred to in whole or in part in the
Registration Statement or any other document, except that reference may be made
to it in the underwriting agreement or in any list of closing documents
pertaining to the offering of the securities covered by the Registration
Statement.
Very Truly Yours,
C-2
