EXHIBIT 2(h)(1)
XXXXXX MUNICIPAL OPPORTUNITIES TRUST
(a Massachusetts business trust)
15,000,000 Common Shares
(Without Par Value)
PURCHASE AGREEMENT
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May 21, 1993
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. XXXXXXX & SONS, INC.
XXXXXX SECURITIES, INC.
PRUDENTIAL SECURITIES INCORPORATED
SHEARSON XXXXXX BROTHERS INC.
XXXX XXXXXXXX INCORPORATED
FIRST OF MICHIGAN CORPORATION
XXXXXXX XXXXX & ASSOCIATES, INC.
THE XXXXXXXX-XXXXXXXX COMPANY, INC.
XXXXX & CO.
XXXXXX XXXXXXX INCORPORATED
As Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Xxxxx World Headquarters
World Financial Center, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Xxxxxx Municipal Opportunities Trust, a Massachusetts business trust
(the "Fund"), and Xxxxxx Investment Management, Inc., a Delaware corporation
(the "Adviser"), each confirms its agreement with you (the "Representatives")
and each of the other underwriters named in Schedule A hereto (collectively, the
"Underwriters", which term shall also include any underwriter substituted as
hereinafter provided in Section 10) with respect to the sale by the Fund and the
purchase by the Underwriters, acting severally and not jointly, of 15,000,000
common shares of beneficial interest, without par value, of the Fund (the
"Common Shares") as set forth in Schedule A and, with respect to the grant by
the Fund to the Underwriters, acting severally and not jointly, of the option
described in Section 2 hereof to purchase all or any part of 2,250,000
additional Common Shares to cover over-allotments. The aforesaid 15,000,000
Common Shares (the "Initial Shares"), together with all or any part of the
2,250,000 additional Common Shares subject to the option described in Section 2
hereof (the "Option Shares"), hereinafter are collectively called the "Shares".
Prior to the purchase and public offering of the Shares by the several
Underwriters, the Fund and the Representatives, on behalf of the several
Underwriters, shall enter into an agreement substantially in the form of Exhibit
A hereto (the "Pricing Agreement"). The Pricing Agreement may take the form of
an exchange of any standard form of written telecommunication between the Fund
and the Representative and shall specify such applicable information as is
indicated in Exhibit A hereto. The offering of the Shares will be governed by
this Agreement, as supplemented by the Pricing Agreement. From and after the
date of the execution and delivery of the Pricing Agreement, this Agreement
shall be deemed to incorporate the Pricing Agreement.
The Fund has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form N-2 (No. 33-60790) and a related
preliminary prospectus for the registration of the Shares under the Securities
Act of 1933, as amended (the "1933 Act"), and a notification on Form N-8A of
registration of the Fund under the Investment Company Act of 1940, as amended
(the "1940 Act"), and the rules and regulations of the Commission under the 1940
Act (together with the rules and regulations of the Commission under the 1933
Act, the "Rules and Regulations"), and has filed such amendments to such
registration statement on Form N-2, if any, and such amended preliminary
prospectuses as may have been required to the date hereof. The Fund will prepare
and file such additional amendments thereto and such amended prospectuses as may
hereafter be required. Such registration statement (as amended, if applicable)
and the prospectus constituting a part thereof (including, in each case, the
information, if any, deemed to be part thereof pursuant to Rule 430A(b) of the
Rules and Regulations), as from time to time amended or supplemented pursuant to
the 1933 Act (or otherwise), are hereinafter referred to as the "Registration
Statement" and the "Prospectus", respectively, except that if any revised
prospectus shall be provided to the Underwriters by the Fund for use in
connection with the offering of the Shares which differs from the Prospectus on
file at the Commission at the time the Registration Statement becomes effective
(whether such revised prospectus is required to be filed by the Fund pursuant to
Rule 497(b) or Rule 497(h) of the Rules and Regulations), the term "Prospectus"
shall refer to such revised prospectus from and after the time it is first
provided to the Underwriters for such use. The term "Registration Statement" as
used herein does not include any registration statement relating to an offering
of preferred shares of beneficial interest offered by the Fund.
The Fund understands that the Underwriters propose to make a public
offering of the Shares as soon as the Representatives deem advisable after the
Registration Statement becomes effective and the Pricing Agreement has been
executed and delivered.
SECTION 1. Representations and Warranties. (a) The Fund and the Adviser
each severally represents and warrants to each Underwriter as of the date hereof
and as of the date of the Pricing Agreement (such latter date being hereinafter
referred to as the "Representation Date") as follows:
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(i) At the time the Registration Statement becomes effective
and at the Representation Date, the Registration Statement will comply
in all material respects with the requirements of the 1933 Act, the
1940 Act and the Rules and Regulations and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. The Prospectus, at the Representation Date (unless the term
"Prospectus" refers to a prospectus which has been provided to the
Underwriters by the Fund for use in connection with the offering of the
Shares which differs from the Prospectus on file at the Commission at
the time the Registration Statement becomes effective, in which case at
the time it is first provided to the Underwriters for such use) and at
Closing Time referred to in Section 2, will not contain an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Fund in writing by the Underwriters
through their Representatives expressly for use in the Registration
Statement or Prospectus and, with respect to the representations and
warranties of the Fund, shall not apply to the description of the
Investment Manager contained in the Prospectus under the caption
"Investment Manager" and to the section of the Prospectus under the
caption "Conditions in the Tax Exempt Securities Market".
(ii) The accountants who certified the statement of assets and
liabilities included in the Registration Statement are independent
public accountants as required by the 1933 Act and the Rules and
Regulations.
(iii) The statement of assets and liabilities included in the
Registration Statement presents fairly the financial position of the
Fund as at the date indicated; and such statement of assets and
liabilities has been prepared in conformity with generally accepted
accounting principles applied on a consistent basis.
(iv) Since the date as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, (a) there has been no material adverse change in the
condition, financial or otherwise, of the Fund, or in the earnings,
business affairs or business prospects of the Fund, whether or not
arising in the ordinary course of business, (b) there have been no
transactions entered into by the Fund which are material to the Fund
other than those in the ordinary course of business and (c) there has
been no dividend or distribution of any kind declared, paid or made by
the Fund on any class of its common shares of beneficial interest.
(v) The Fund has been duly established and is validly existing
as a voluntary association (commonly referred to as a business trust)
under the laws of The
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Commonwealth of Massachusetts; the Agreement and Declaration of Trust,
as it may have been amended (the "Declaration of Trust"), pursuant to
which the Fund was established, confers on the trustees named therein,
and their successors in trust, power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus; the Fund is duly qualified to transact business and is in
good standing in each jurisdiction in which such qualification is
required or is subject to no material liability or disability by reason
of the failure to be so qualified in any such jurisdiction; and the
Fund has no subsidiaries.
(vi) The Fund has filed with the Commission a notification on
Form N-8A of the registration of the Fund as a closed-end
non-diversified management investment company under the 1940 Act and is
registered with the Commission under the 1940 Act as a closed-end
non-diversified management investment company.
(vii) The authorized, issued and outstanding common shares of
beneficial interest of the Fund are as set forth in the Prospectus
under the caption "Description of Shares"; the Shares have been duly
authorized for issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered by the Fund pursuant to this
Agreement against payment of the consideration set forth in the Pricing
Agreement, will be validly issued and fully paid and non-assessable
(except as set forth in the Prospectus); the Shares conform in all
material respects to all statements relating thereto contained in the
Prospectus; the issuance of the Shares to be purchased by the
Underwriters is not subject to preemptive or other similar rights; and
this Agreement and the Pricing Agreement have been duly authorized,
executed and delivered by the Fund.
(viii) The Fund is not in violation of its Declaration of
Trust or the by-laws, as amended, of the Fund (the "By-laws") or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it or its properties may be bound; and
the execution, delivery and performance of this Agreement, the Pricing
Agreement, the Management Contract and the Administrative Services
Contract referred to in the Prospectus (as used herein, the "Management
Contract" and the "Administration Contract", respectively) and the
Custodian Agreement dated May 3, 1991 among the Fund, certain
affiliates of the Fund and Xxxxxx Fiduciary Trust Company (the
"Custodian Agreement") and the Investor Servicing Agreement dated July
1, 1991 pursuant to which Xxxxxx Fiduciary Trust Company will act as
the Fund's dividend disbursing agent, transfer agent and registrar (the
"Investor Servicing Agreement") and the consummation of the
transactions contemplated herein and therein have been duly authorized
by all necessary trust action and will not conflict with or constitute
a breach of, or default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Fund pursuant to, any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Fund is a party
or by which it may be
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bound or to which any of the property or assets of the Fund is subject,
nor will such action result in any violation of the provisions of the
Declaration of Trust or the By-laws or, to the best of its knowledge,
any law, administrative regulation or administrative or court decree;
and no consent, approval, authorization or order of any court or
governmental authority or agency is required for the consummation by
the Fund of the transactions contemplated by this Agreement, the
Pricing Agreement, the Management Contract, the Investor Servicing
Agreement or the Custodian Agreement, except such as has been obtained
under the 1940 Act or as may be required under the 1933 Act, or state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters.
(ix) The Management Contract, the Administration Contract, the
Investor Servicing Agreement and the Custodian Agreement have each been
duly authorized, executed and delivered by the Fund and comply with all
applicable provisions of the 0000 Xxx.
(x) The Fund owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to
operate its properties and to carry on its business as contemplated in
the Prospectus.
(xi) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Fund, threatened against the Fund which
might result in any material adverse change in the condition, financial
or otherwise, business affairs or business prospects of the Fund, or
might materially and adversely affect the properties or assets of the
Fund; and there are no material contracts or documents of the Fund
which are required to be filed as exhibits to the Registration
Statement by the 1933 Act, the 1940 Act or by the Rules and Regulations
which have not been so filed.
(xii) The Fund owns or possesses, or can acquire on reasonable
terms, adequate trademarks, service marks and trade names necessary to
conduct the business now operated by it, and the Fund has not received
any notice of infringement of or conflict with asserted rights of
others with respect to any trademarks, service marks or trade names
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially adversely affect the
conduct of the business, operations, financial condition or income of
the Fund.
(xiii) The Shares have been approved for listing, subject to
official notice of issuance, on the New York Stock Exchange.
(b) The Adviser represents and warrants to each Underwriter as follows:
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(i) The Adviser has been duly incorporated as a corporation
under the laws of the State of Delaware with corporate power and
authority to conduct its business as described in the Prospectus.
(ii) The Adviser is duly registered as an investment adviser
under the Investment Advisers Act of 1940, as amended (the "Advisers
Act") and is not prohibited by the Advisers Act or the 1940 Act, or the
rules and regulations under such Acts, from acting under the Management
Contract for the Fund as contemplated by the Prospectus.
(iii) This Agreement has been duly authorized, executed and
delivered by the Adviser; the Management Contract and the
Administration Contract have each been duly authorized, executed and
delivered by the Adviser and constitute a valid and binding obligation
of the Adviser, enforceable in accordance with their terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization or other laws
relating to or affecting creditors' rights and to general equity
principles; and neither the execution and delivery of this Agreement,
the Management Contract or the Administration Contract nor the
performance by the Adviser of its obligations hereunder or thereunder
will conflict with, or result in a breach of, any of the terms and
provisions of, or constitute, with or without giving notice or lapse of
time or both, a default under, any material agreement or instrument to
which the Adviser is a party or by which the Adviser is bound, or any
law, order, rule or regulation applicable to it of any jurisdiction,
court, federal or state regulatory body, administrative agency or other
governmental body, stock exchange or securities association having
jurisdiction over the Adviser or its properties or operations.
(iv) The Adviser has the financial resources available for the
performance of its services and obligations as contemplated in the
Prospectus.
(v) All advertisements authorized in writing or prepared by
the Fund or the Adviser for use in the public offering of the Shares
pursuant to Rule 482 under the Rules and Regulations (an "Omitting
Prospectus") and all other advertisements and sales literature
authorized in writing prepared by the Fund or the Adviser for use in
connection with the public offering of the Shares complied and comply
with the requirements of the 1933 Act, the Rules and Regulations and
the rules and interpretations of the NASD and no such advertisement
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.
(c) Any certificate signed by any officer of the Fund or the Adviser
and delivered to the Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty by the Fund or the Adviser, as the case may
be, to each Underwriter as to the matters covered thereby.
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SECTION 2. Sale and Delivery to the Underwriters; Closing. (a) On the
basis of the representations and warranties herein contained and subject to the
terms and conditions herein set forth, the Fund agrees to sell to each
Underwriter and each Underwriter, severally and not jointly, agrees to purchase
from the Fund at the price per share set forth in the Pricing Agreement the
Shares set forth in Schedule A opposite the name of such Underwriter (except as
otherwise provided in the Pricing Agreement), plus any additional number of
Shares which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(1) If the Fund has elected not to rely upon Rule 430A under
the Rules and Regulations, the initial public offering price and the
purchase price per share to be paid by the several Underwriters for the
Shares have each been determined and set forth in the Pricing
Agreement, dated the date hereof, and an amendment to the Registration
Statement and the Prospectus will be filed before the Registration
Statement becomes effective.
(2) If the Fund has elected to rely upon Rule 430A under the
Rules and Regulations, the purchase price per share to be paid by the
Underwriters for the Shares shall be an amount equal to the initial
public offering price, less an amount to be determined by agreement
between the Representatives and the Fund. The initial public offering
price per share of the Shares shall be a fixed price to be determined
by agreement between the Representatives and the Fund. The initial
public offering price and the purchase price, when so determined, shall
be set forth in the Pricing Agreement. In the event that such prices
have not been agreed upon and the Pricing Agreement has not been
executed and delivered by all parties thereto by the close of business
on the fourth business day following the date of this Agreement, this
Agreement shall terminate forthwith, without liability of any party to
any other party, unless otherwise agreed to by the Fund and the
Representatives.
(3) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions
herein set forth, the Fund hereby grants an option to the Underwriters
to purchase up to an additional 2,250,000 Shares at the price per share
set forth in the Pricing Agreement. The option hereby granted will
expire 45 days after the date hereof (or, if the Fund has elected to
rely upon Rule 430A under the Rules and Regulations, 45 days after the
execution of the Pricing Agreement) and may be exercised, up to three
times, only for the purpose of covering over-allotments which may be
made in connection with the offering and distribution of the Initial
Shares upon notice by the Representatives to the Fund setting forth the
number of Option Shares as to which the several Underwriters are then
exercising the option and the time, date and place of payment and
delivery for such Option Shares. Any such time and date of delivery (a
"Date of Delivery") shall be determined by the Representatives but
shall not be later than seven full business days after the exercise of
such option, nor in any event prior to Closing Time, as hereinafter
defined, unless otherwise agreed upon by the Representatives and the
Fund. If the option is exercised
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as to all or any portion of the Option Shares, the Option Shares shall
be purchased by the Underwriters, severally and not jointly, in
proportion to their respective Initial Share underwriting obligations
as set forth in Schedule A (except as otherwise provided in the Pricing
Agreement).
(4) The Fund will notify the Underwriters at least 10 days
prior to the declaration of any dividend to be declared during the 45
day period during which the option to purchase the Option Shares is in
effect.
(b) Payment of the purchase price for, and delivery of certificates
for, the Initial Shares shall be made at the office of Xxxxx & Xxxx, Xxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place as shall be agreed
upon by the Representatives and the Fund, at 10:00 A.M. on the fifth business
day (unless postponed in accordance with the provisions of Section 10) following
the date the Registration Statement becomes effective (or, if the Fund has
elected to rely upon Rule 430A, the fifth business day after execution of the
Pricing Agreement), or such other time not later than ten business days after
such date as shall be agreed upon by the Representatives and the Fund (such time
and date of payment and delivery being herein called "Closing Time"). In
addition, in the event that any or all of the Option Shares are purchased by the
Underwriters, payment of the purchase price for, and delivery of certificates
for, such Option Shares shall be made at the above-mentioned office of Xxxxx &
Wood, or at such other place as shall be mutually agreed upon by the Fund and
the Representatives, on each Date of Delivery as specified in the notice from
the Representatives to the Fund. Payment shall be made to the Fund by certified
or official bank check or checks drawn in New York Clearing House or similar
next-day funds and payable to the order of the Fund, against delivery to the
Representatives for the respective accounts of the Underwriters of certificates
for the Shares to be purchased by them. Certificates for the Initial Shares and
Option Shares shall be in such denominations and registered in such names as the
Representatives may request in writing at least two business days before Closing
Time or the Date of Delivery, as the case may be. It is understood that each
Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Shares and the Option Shares which it has agreed to purchase. The
Representatives, individually and not as representatives of the Underwriters,
may (but shall not be obligated to) make payment of the purchase price for the
Initial Shares and the Option Shares to be purchased by any Underwriter whose
check has not been received by Closing Time or the Date of Delivery, as the case
may be, but such payment shall not relieve such Underwriter from its obligations
hereunder. The certificate for the Initial Shares and the Option Shares will be
made available for examination and packaging by the Underwriters not later than
10:00 A.M. on the last business day prior to Closing Time or the Date of
Delivery, as the case may be.
SECTION 3. Covenants of the Fund. The Fund covenants with each
Underwriter as follows:
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(a) The Fund will use its best efforts to cause the Registration
Statement to become effective under the 1933 Act, and will advise the
Representatives promptly as to the time at which the Registration Statement
becomes so effective.
(b) The Fund will notify the Representatives immediately, and confirm
the notice in writing, (i) of the effectiveness of the Registration Statement
and any amendment thereto (including any post-effective amendment), (ii) when
the Prospectus has been timely filed pursuant to Rule 497(b) or Rule 497(h) of
the Rules and Regulations, whichever is applicable under the Rules and
Regulations, (iii) of the receipt by the Fund of any comments from the
Commission, (iv) of any request by the Commission to the Fund for any amendment
to the Registration Statement or any amendment or supplement to the Prospectus
or for additional information, and (v) of the issuance to the Fund by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. The Fund will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(c) During any period in which an Underwriter is required to deliver a
prospectus in connection with the sale or offer of Shares, the Fund will give
the Representatives notice of its intention to file any amendment to the
Registration Statement (including any post-effective amendment) or any amendment
or supplement to the Prospectus whether pursuant to the 1933 Act, the 1940 Act
or otherwise, and the Fund will not file any such amendment or supplement or use
any such prospectus to which the Representatives or counsel to the Underwriters
shall reasonably object.
(d) The Fund will deliver to the Representatives, as soon as
practicable, two signed copies of the Registration Statement as originally filed
and of each amendment thereto, in each case with three sets of the exhibits
filed therewith, and will also deliver to the Representatives a conformed copy
of the Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the other Underwriters.
(e) The Fund will furnish to each Underwriter, from time to time during
the period when the Prospectus is required to be delivered under the 1933 Act,
such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request for the purposes contemplated by the 1933
Act, the 1940 Act or the Rules and Regulations.
(f) During any period in which an Underwriter is required to deliver a
prospectus in connection with the sale or offer of Shares, if any event shall
occur as a result of which it is necessary, in the reasonable opinion of counsel
for the Underwriters, to amend or supplement the Prospectus in order to make the
Prospectus not misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, the Fund will forthwith amend or supplement the
Prospectus by preparing and furnishing to the Underwriters a reasonable number
of copies of an amendment or amendments of, or a supplement or supplements to,
the Prospectus (in form and substance reasonably satisfactory to counsel for the
Underwriters), so that, as so
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amended or supplemented, the Prospectus will not contain an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
Statements therein, in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, not misleading; and, in case any
Underwriter is required to deliver a Prospectus nine months or more after the
effective date of the Registration Statement in connection with sales of any of
the Shares, the Fund will prepare promptly, upon request of such Underwriter
(made through the Representatives), and at the expense of such Underwriter, such
amendment or amendments to the Registration Statement, and such Prospectus, as
may be necessary to permit compliance with the 1933 Act, the 1940 Act and the
Rules and Regulations.
(g) The Fund will endeavor, in cooperation with the Underwriters, to
qualify the Shares for offering and sale under the applicable securities laws of
such states and other jurisdictions of the United States as the Representatives
may designate, and will maintain such qualifications in effect for a period of
not less than one year after the date hereof. The Fund will file such statements
and reports as may be required by the laws of each jurisdiction in which the
Shares have been qualified as above provided; provided, however, the Fund shall
not be required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction where it is not now so qualified or
required to file such a consent.
(h) The Fund will make generally available to its security holders as
soon as practicable, but not later than 60 days after the close of the period
covered thereby, an earning statement (in form complying with the provisions of
Rule 158 under the 0000 Xxx) covering a twelve month period beginning not later
than the first day of the Fund's fiscal quarter next following the effective
date of the Registration Statement.
(i) If, at the time that the Registration Statement becomes effective,
any information shall have been omitted therefrom in reliance upon Rule 430A of
the Rules and Regulations, then immediately following the execution of the
Pricing Agreement, the Fund will prepare, and file or transmit for filing with
the Commission in accordance with such Rule 430A and Rule 497(h) of the Rules
and Regulations copies of an amended Prospectus or, if required by such Rule
430A, a post-effective amendment to the Registration Statement (including an
amended Prospectus) containing all information so omitted.
(j) Between the date of this Agreement and the termination of any
trading restrictions or Closing Time, whichever is later, the Fund will not,
without the Underwriters' prior consent, offer or sell, or enter into any
agreement to sell, any equity related securities of the Fund, except with regard
to any preferred shares as contemplated in the Prospectus.
SECTION 4. Payment of Expenses. The Fund will pay all expenses incident
to the performance of its obligations under this Agreement, including, but not
limited to, expenses relating to (i) the printing and filing of the registration
statement as originally filed and of each amendment thereto, (ii) the printing
of this Agreement and the Pricing Agreement, (iii) the preparation, issuance and
delivery of the certificates for the Shares to the Underwriters, (iv) the fees
and disbursements of the Fund's counsel and accountants, (v) the qualification
of the
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Shares under securities laws in accordance with the provisions of Section 3(g)
of this Agreement, including filing fees and any reasonable fees or
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey, (vi) the printing and
delivery to the Underwriters of copies of the registration statement as
originally filed and of each amendment thereto, of the preliminary prospectuses,
of any Omitting Prospectus and of the Prospectus and any amendments or
supplements thereto, (vii) the printing and delivery to the Underwriters of
copies of the Blue Sky Survey, (viii) the fees and expenses incurred with
respect to the filing with the National Association of Securities Dealers, Inc.
and (ix) the fees and expenses incurred with respect to the listing of the
Shares on the New York Stock Exchange.
If this Agreement is terminated by the Representatives in accordance
with the provisions of Section 5 or Section 9(a)(i), the Adviser shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters. In the event
the transactions contemplated hereunder are not consummated (except as a result
of a termination of this Agreement pursuant to Section 10), the Adviser agrees
to pay all of the costs and expenses set forth in the first paragraph of this
Section 4 which the Fund would have paid if such transactions were consummated.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Fund and the Adviser herein contained, to the performance
by the Fund and the Adviser of their respective obligations hereunder, and to
the following further conditions:
(a) The Registration Statement shall have become effective not later
than 5:30 P.M., New York City time, on the date hereof, or with the consent of
the Representatives, at a later time and date not later, however, than 5:30 P.M.
on the first business day following the date hereof, or at such later time and
date as may be approved by the Representatives, and at Closing Time no stop
order suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
Commission. If the Fund has elected to rely upon Rule 430A of the Rules and
Regulations, the price of the Shares and any price-related information
previously omitted from the effective Registration Statement pursuant to such
Rule 430A shall have been transmitted to the Commission for filing pursuant to
Rule 497(h) of the Rules and Regulations within the prescribed time period, and
prior to Closing Time the Fund shall have provided evidence satisfactory to the
Underwriters of such timely filing, or a post-effective amendment providing such
information shall have been promptly filed and declared effective in accordance
with the requirements of Rule 430A of the Rules and Regulations.
(b) At Closing Time the Representatives shall have received:
(1) The favorable opinion, dated as of Closing Time, of Ropes
& Xxxx, counsel for the Fund, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
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(i) The Fund has been duly organized and is validly
existing as an unincorporated association commonly referred to
as a business trust under the laws of The Commonwealth of
Massachusetts.
(ii) The Fund has power and authority to own, lease
and operate its properties and conduct its business as
described in the Registration Statement and the Prospectus.
(iii) The Shares have been duly authorized for
issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered by the Fund pursuant
to this Agreement against payment of the consideration set
forth in the Pricing Agreement, will be validly issued and
fully paid and non-assessable (except as set forth in the
Prospectus); and the issuance of the Shares is not subject to
preemptive or other similar rights.
(iv) This Agreement and the Pricing Agreement have
each been duly authorized, executed and delivered by the Fund.
(v) The Registration Statement is effective under the
1933 Act and, to the best of their knowledge and information,
no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(vi) At the time the Registration Statement became
effective and at the Representation Date, the Registration
Statement (other than the statement of assets and liabilities
and other financial and statistical data included therein, as
to which no opinion need be rendered) complied as to form in
all material respects with the requirements of the 1933 Act,
the 1940 Act and the Rules and Regulations.
(vii) The authorized shares of beneficial interest of
the Fund conform to the description thereof contained in the
Prospectus, and the form of certificate used to evidence the
Common Shares is in proper form and complies with all
applicable statutory requirements.
(viii) To the best of their knowledge and
information, there are no legal or governmental proceedings
pending or threatened against the Fund which are required to
be disclosed in the Registration Statement, other than those
disclosed therein.
(ix) To the best of their knowledge and information,
there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments of the Fund
required to be described or referred to in the
-12-
Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed as
exhibits thereto, the descriptions thereof or references
thereto are correct, and no default exists in the due
performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, loan agreement, note or lease so described,
referred to or filed.
(x) No consent, approval, authorization or order of
any court or governmental authority or agency is required in
connection with the sale of the Shares to the Underwriters,
except such as has been obtained under the 1933 Act, the 1940
Act or the Rules and Regulations or such as may be required
under state securities laws; and to the best of their
knowledge and information, the execution and delivery of this
Agreement, the Pricing Agreement, the Management Contract, the
Administration Contract, the Custodian Agreement and the
Investor Servicing Agreement and the consummation of the
transactions contemplated herein and therein, will not
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Fund pursuant
to, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Fund is a party or by
which it may be bound or to which any of the property or
assets of the Fund is subject, nor will such action result in
any violation of the provisions of the Declaration of Trust or
By-laws, or any law, administrative regulation or
administrative or court decree.
(xi) The Management Contract, the Administration
Contract and the Custodian Agreement have each been duly
authorized, executed and delivered by the Fund; the Management
Contract complies with Section 15(a) of the 1940 Act and the
Custodian Agreement complies, in all material respects, with
all applicable provisions of the 1940 Act.
(xii) The Fund is registered with the Commission
under the 1940 Act as a closed-end non-diversified management
investment company, and all required action has been taken by
the Fund under the 1933 Act, the 1940 Act and the Rules and
Regulations to make the public offering and consummate the
sale of the Shares pursuant to this Agreement; the provisions
of the Declaration of Trust and the By-laws comply as to form
in all material respects with the requirements of the 1940
Act.
(xiii) The information in the Prospectus under the
caption "Taxation", to the extent that it constitutes matters
of law or legal conclusions, provides a fair summary of such
law or conclusions.
-13-
(2) The favorable opinion, dated as of Closing Time, of
Xxxxxxx X. Xxxxxxxxxx, Esq., general counsel to the Adviser, in form
and substance satisfactory to counsel for the Underwriters, to the
effect that:
(i) The Adviser has been duly organized as a
corporation under the laws of the State of Delaware with
corporate power and authority to conduct its business as
described in the Prospectus.
(ii) The Adviser is duly registered as an investment
adviser under the Advisers Act and is not prohibited by the
Advisers Act or the 1940 Act, or the rules and regulations
under such Acts, from acting under the Management Contract or
the Administration Contract for the Fund as contemplated by
the Prospectus.
(iii) This Agreement, the Management Contract and the
Administration Contract have been duly authorized, executed
and delivered by the Adviser and the Management Contract and
the Administration Contract each constitute a valid and
binding obligation of the Adviser, enforceable in accordance
with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization or other laws relating to or
affecting creditors' rights and to general equity principles;
and neither the execution and delivery of this Agreement, the
Management Contract or the Administration Contract nor the
performance by the Adviser of its obligations hereunder or
thereunder will, to the best of such counsel's knowledge,
conflict with, or result in a breach of, any of the terms and
provisions of, or constitute, with or without giving notice of
lapse of time or both, a default under, any agreement or
instrument to which the Adviser is a party or by which the
Adviser is bound, or any law, order, rule or regulation
applicable to the Adviser of any jurisdiction, court, federal
or state regulatory body, administrative agency or other
governmental body, stock exchange or securities association
having jurisdiction over the Adviser or its properties or
operations.
(iv) To the best of such counsel's knowledge and
information, the description of the Adviser in the
Registration Statement and the Prospectus does not contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading.
(3) The favorable opinion, dated as of Closing Time, of Xxxxx
& Wood, counsel for the Underwriters, with respect to the matters set
forth in (i), (iii) to (vi), inclusive, and (xii) of subsection (b)(1)
of this Section.
(4) In giving their opinions required by subsection (b)(1) and
(b)(3), respectively, of this Section, Ropes & Xxxx and Xxxxx & Xxxx
shall each additionally
-14-
state that nothing has come to their attention that would lead them to
believe that the Registration Statement (excluding the statement of
assets and liabilities and other financial or statistical data included
therein, as to which such counsel need express no belief), at the time
it became effective or at the Representation Date, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus (except for the statement
of assets and liabilities and other financial or statistical data
included therein as to which such counsel need express no belief), at
the Representation Date (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriters by the Fund for
use in connection with the offering of the Shares which differs from
the Prospectus on file at the Commission at the time the Registration
Statement becomes effective, in which case at the time it is first
provided to the Underwriters for such use) or at Closing Time, included
an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. In giving
their opinion, Xxxxx & Wood may rely as to matters involving the laws
of The Commonwealth of Massachusetts upon the opinion of Ropes & Xxxx.
Ropes & Xxxx, Xxxxx & Xxxx and Coopers & Xxxxxxx may rely, as to
matters of fact, upon certificates and written statements of officers
and employees of and accountants for the Fund and the Adviser.
(c) At Closing Time (i) the Registration Statement and the Prospectus
shall contain all statements which are required to be stated therein in
accordance with the 1933 Act, the 1940 Act and the Rules and Regulations and in
all material respects shall conform to the requirements of the 1933 Act, the
1940 Act and the Rules and Regulations and neither the Registration Statement
nor the Prospectus shall contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading and no action, suit or proceeding at law
or in equity shall be pending or, to the knowledge of the Fund or the Adviser,
threatened against the Fund or the Adviser, which would be required to be set
forth in the Prospectus other than as set forth therein, (ii) there shall not
have been, since the date hereof or since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, of the Fund or
in its earnings, business affairs or business prospects, whether or not arising
in the ordinary course of business, from that set forth in the Registration
Statement and the Prospectus, (iii) the Adviser shall have the financial
resources available to it necessary for the performance of its services and
obligations as contemplated in the Registration Statement and the Prospectus and
(iv) no proceedings shall be pending or, to the knowledge of the Fund or the
Adviser, threatened against the Fund or the Adviser before or by any federal,
state or other commission, board or administrative agency wherein an unfavorable
decision, ruling or finding would materially and adversely affect the business,
property, financial condition or income of either the Fund or the Adviser other
than as set forth in the Registration Statement and the Prospectus; and the
Representatives shall have received, at Closing Time, a certificate of the Fund
signed by the President or Treasurer of the Fund and of the Adviser signed by
the President, a Managing Director or a Vice
-15-
President of the Adviser, dated as of Closing Time, evidencing compliance with
the appropriate provisions of this subsection (c) and, in the case of the
President or the Treasurer of the Fund, stating that the representations and
warranties set forth in Section 1(a) hereof are accurate as though expressly
made as of Closing Time.
(d) At Closing Time, the Representatives shall have received a
certificate, dated as of Closing Time, of the Adviser signed by the President, a
Managing Director or a Vice President, to the effect that the representations
and warranties of the Adviser contained in Sections 1(a) and (b) are true and
correct with the same force and effect as though expressly made at and as of
Closing Time.
(e) At the time of the execution of this Agreement, the Representatives
shall have received from Coopers & Xxxxxxx a letter dated such date, in form and
substance satisfactory to the Representatives, to the effect that (i) they are
independent public accountants as required by the 1933 Act, the 1940 Act and the
Rules and Regulations; (ii) it is their opinion that the statement of assets and
liabilities included in the Registration Statement and covered by their opinion
therein complies as to form in all material respects with the applicable
accounting requirements of the 1933 Act, the 1940 Act and the Rules and
Regulations; and (iii) they have performed specified procedures, not
constituting an audit, including a reading of the latest available interim
financial statements of the Fund, a reading of the minute books of the Fund,
inquiries of officials of the Fund responsible for financial accounting matters
and such other inquiries and procedures as may be specified in such letter, and
on the basis of such inquiries and procedures nothing came to their attention
that caused them to believe that at the date of the latest available balance
sheet read by such accountants, or at a subsequent specified date not more than
five days prior to the date of this Agreement, there was any change in the
capital shares or net assets of the Fund as compared with amounts shown on the
statements of assets and liabilities included in the Prospectus.
(f) At Closing Time, the Representatives shall have received from
Coopers & Xxxxxxx a letter, dated as of Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection (e)
of this Section, except that the "specified date" referred to shall be a date
not more than five days prior to Closing Time.
(g) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the Shares as
herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Fund and
the Adviser in connection with the organization and registration of the Fund
under the 1940 Act and the issuance and sale of the Shares as herein
contemplated shall be reasonably satisfactory in all material respects in form
and substance to the Representative and counsel for the Underwriters.
-16-
(h) In the event the Underwriters exercise their option provided in
Section 2 hereof to purchase all or any portion of the option Shares, the
representations and warranties of the Fund and the Adviser contained herein and
the statements in any certificate furnished by the Fund and the Adviser
hereunder shall be true and correct as of each Date of Delivery, and the
Representatives shall have received:
(1) Certificates, dated the Date of Delivery, of the President
and Treasurer of the Fund and of the President or a Vice President of
the Adviser confirming that the information contained in the
certificates delivered by each of them at Closing Time pursuant to
Section 5(c) and (d), respectively, remains true as such Date of
Delivery.
(2) The favorable opinions of Ropes & Xxxx, counsel for the
Fund, and Xxxxxxx X. Xxxxxxxxxx, Esq., counsel for the Adviser, in form
and substance satisfactory to counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Shares and otherwise to the
same effect as the opinions required by Sections 5(b)(1) and (2),
respectively.
(3) The favorable opinion of Xxxxx & Xxxx, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Shares and otherwise to the same effect as the opinion required by
Section 5(b)(3).
(4) A letter from Coopers & Xxxxxxx, in form and substance
satisfactory to the Representatives and dated such Date of Delivery,
substantially the same in scope and substance as the letter furnished
to the Representatives pursuant to Section 5(e), except that the
"specified date" in the letter furnished pursuant to this Section
5(h)(4) shall be a date not more than five days prior to such Date of
Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Fund at any time at or prior to Closing
Time, and such termination shall be without liability of any party to any other
party except as provided in Section 4.
SECTION 6. Indemnification. (a) The Fund and the Adviser, jointly and
severally, agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto) including the
information deemed to be a part of the Registration Statement pursuant
to Rule 430A(b) of the Rules and Regulations, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or
the
-17-
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Fund and the Adviser; and
(iii) against any and all expenses whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Underwriters), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Fund by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) and provided further, the
foregoing indemnification with respect to any preliminary prospectus shall not
inure to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Shares (or to the benefit of
any person controlling such Underwriter) if a copy of the Prospectus (as then
amended or supplemented if the Fund shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if such is required by law, at or prior to the written
confirmation of the sales of such Shares to such person and if indemnifying
parties be liable for the fees and expenses of more than one counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable in accordance with its
terms, the Fund, the Adviser and the Underwriters shall contribute to the
aggregate losses, liabilities, claims, damages and expenses, as incurred, of the
nature contemplated by said indemnity agreement incurred by the Fund, the
Adviser and one or more of the Underwriters, in such proportions that the
Underwriters are responsible for that portion represented by the percentage that
the underwriting compensation payable pursuant to Section 2 hereof bears to the
initial public
-18-
offering price appearing on the cover page of the Prospectus, and the Fund and
the Adviser are responsible for the balance; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section, each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as such Underwriter, and
each trustee or director of the Fund and the Adviser, respectively, each officer
of the Fund who signed the Registration Statement, and each person, if any, who
controls the Fund or the Adviser within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as the Fund and the Adviser,
respectively.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the Pricing Agreement, or contained in certificates of officers of
the Fund or the Adviser submitted pursuant hereto or thereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by or on behalf of the
Fund or the Adviser and shall survive delivery of the Shares to the
Underwriters.
SECTION 9. Termination of Agreement. (a) The Representatives may
terminate this Agreement, by written notice to the Fund, at any time at or prior
to Closing Time (i) if there has been, since the date of this Agreement or since
the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Fund or the
Adviser, whether or not arising in the ordinary course of business, or (ii) if
there has Occurred any outbreak of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in the judgment of the Representatives, impracticable to market the Shares
or to enforce contracts for the sale of Shares, or (iii) if trading in the
Shares has been suspended by the Commission or if trading generally on either
the New York Stock Exchange or the American Stock Exchange has been suspended,
or minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said Exchanges or by
order of the Commission or any other governmental authority, or if a banking
moratorium has been declared by Federal, New York or Massachusetts authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time to purchase the Shares which it
or they are obligated to purchase under this Agreement and the Pricing Agreement
(the "Defaulted Securities"), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
-19-
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
Shares, the non-defaulting Underwriters shall be obligated to purchase the full
amount thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the Shares,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Fund shall have the right
to postpone Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements.
SECTION 11. Notice. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of written telecommunication. Notices to the
Underwriters shall be directed to Xxxxxxx Xxxxx World Headquarters, World
Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, attention of Xx.
Xxxxxx X. Xxxxxxx, Vice President; notices to the Fund or the Adviser shall be
directed to each of them at Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
attention of Xx. Xxxx X. Xxxxxx, Vice President.
SECTION 12. Parties. This Agreement and the Pricing Agreement shall
each inure to the benefit of and be binding upon the Underwriters, the Fund and
the Adviser and their respective successors. Nothing expressed or mentioned in
this Agreement or the Pricing Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers, trustees and
directors referred to in Section 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or the Pricing Agreement or any provision herein or
therein contained. This Agreement and all conditions and provisions hereof and
thereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors, and said controlling persons and
officers, trustees and directors and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of Shares
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Liability of Shareholders, Trustees and Officers. A copy of
the Agreement and Declaration of Trust of the Fund is on file with the Secretary
of State of The
-20-
Commonwealth of Massachusetts and notice is hereby given that this Agreement has
been executed on behalf of the Fund by an officer of the Fund as an officer and
not individually and the obligations of the Fund arising out of this Agreement
are not binding upon any of the trustees, officers or shareholders of the Fund
individually but are binding only upon the assets and property of the Fund.
SECTION 14. Governing Law and Time. This Agreement and the Pricing
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to the agreements made and to be performed in such
State. Specified times of day refer to New York City time.
If the foregoing is in accordance with your understanding of our
Agreement, please sign and return to the Fund and the Adviser a counterpart
hereof, whereupon this instrument along with all counterparts will become a
binding agreement among the Underwriters, the Fund and the Adviser and in
accordance with its terms.
Very truly yours,
XXXXXX MUNICIPAL OPPORTUNITIES TRUST
By: /s/ Xxxxxx Xxxxxx
_______________________________________
Authorized Officer
XXXXXX INVESTMENT MANAGEMENT, INC.
By: /s/ Xxxxxx X. Silver
_______________________________________
Authorized Officer
-21-
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. XXXXXXX & SONS, INC.
XXXXXX SECURITIES, INC.
PRUDENTIAL SECURITIES INCORPORATED
SHEARSON XXXXXX BROTHERS INC.
XXXX XXXXXXXX INCORPORATED
FIRST OF MICHIGAN CORPORATION
XXXXXXX XXXXX & ASSOCIATES, INC.
THE XXXXXXXX-XXXXXXXX COMPANY, INC.
XXXXX & CO.
XXXXXX XXXXXXX INCORPORATED
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: /s/ Xxxx Xxxxx
___________________________________
Authorized Signatory
Investment Banking
For themselves and as Representatives of the
several Underwriters named in
Schedule A hereto.
-22-
SCHEDULE A
Number of
Initial Shares
Name of Underwriter to be Purchased
------------------- ---------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated............................................ 804,820
X.X. Xxxxxxx & Sons, Inc......................................... 804,818
Xxxxxx Securities, Inc........................................... 804,818
Prudential Securities Incorporated............................... 804,818
Shearson Xxxxxx Brothers Inc..................................... 804,818
Xxxx Xxxxxxxx Incorporated....................................... 804,818
First of Michigan Corporation.................................... 804,818
Xxxxxxx Xxxxx & Associates, Inc.................................. 804,818
The Xxxxxxxx-Xxxxxxxx Company, Inc............................... 804,818
Xxxxx & Co....................................................... 804,818
Xxxxxx Xxxxxxx Incorporated...................................... 804,818
Bear, Xxxxxxx & Co. Inc.......................................... 221,300
Alex. Xxxxx & Sons Incorporated.................................. 221,300
Xxxxxx, Peabody & Co. Incorporated............................... 221,300
Xxxxxxxxxxx & Co., Inc........................................... 221,300
PaineWebber Incorporated......................................... 221,300
Xxxxx Xxxxxx, Xxxxxx Xxxxx & Co. Incorporated ................... 221,300
Advest, Inc...................................................... 150,000
Xxxxxx X. Xxxxx & Co. Incorporated............................... 150,000
Xxxxx & Company.................................................. 150,000
First Albany Corporation......................................... 150,000
Gruntal & Co., Incorporated...................................... 150,000
Interstate/Xxxxxxx Lane Corporation.............................. 150,000
Xxxxxx Xxxxxxxxxx Xxxxx Inc...................................... 150,000
Ladenburg, Xxxxxxxx & Co. Inc.................................... 150,000
XxXxxxxx & Company Securities, Inc............................... 150,000
Xxxxxx Xxxxxx & Company, Inc..................................... 150,000
Xxxxxxx & Company, Inc........................................... 150,000
Xxxxx Xxxxxxx Inc................................................ 150,000
The Principal/Xxxxxx, Xxxxxx & Xxxxxx, Inc. ..................... 150,000
Xxxxx XxxXxxxxx Incorporated..................................... 150,000
Xxxxxxxx Xxxxxx Refsnes, Inc..................................... 150,000
Xxxxxxxx Inc..................................................... 150,000
Xxxxxx, Xxxxxxxx & Company, Incorporated ........................ 150,000
Sutro & Co. Incorporated......................................... 150,000
Wheat, First Securities, Inc..................................... 150,000
The Chicago Corporation.......................................... 75,000
-00-
Xxxxxxx, Xxxxxx & Co............................................. 75,000
Xxxxxxxxx & Co................................................... 75,000
Doft & Co., Inc.................................................. 75,000
Xxxxxxxx & Xxxxxxxx, Incorporated................................ 75,000
Xxxxxxxxxx & Co. Inc............................................. 75,000
Xxxxxx, Xxxxx Xxxxx, Incorporated................................ 75,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc................................. 75,000
Xxxxxxxx, Lemon & Co. Incorporated............................... 75,000
Xxxxxxxxxx Xxxx & Xxxx Incorporated.............................. 75,000
The Ohio Company................................................. 75,000
Xxxxxx/Hunter Incorporated....................................... 75,000
Xxxxxx & Xxxxxxx, Inc............................................ 75,000
Xxxxx & Xxxxxxxxxxxx, Inc........................................ 75,000
Xxxxxxx Amdec Securities Inc..................................... 75,000
Wedbush Xxxxxx Securities........................................ 75,000
Xxxxx-Xxxxxx, Inc................................................ 56,300
Xxxxxxxxx & Co. of Virginia, Inc................................. 56,300
X.X. Xxxxxxxx & Co. Incorporated................................. 56,300
Xxxxxxxx Investments, Inc........................................ 56,300
Xxxxxxx, Xxxxxx Inc.............................................. 56,300
Xxxxxxx Equities, Inc............................................ 56,300
Xxxxx X. Xxxxx & Company......................................... 56,300
Xxxxxxxxxxxxx, Xxxxxx & Co., Inc................................. 56,300
Southwest Securities, Inc........................................ 56,300
Branch, Xxxxxx and Company....................................... 37,500
The Xxxxxxx Company.............................................. 37,500
XX Xxxxxxx Securities, Inc....................................... 37,500
Xxxxx & Xxxxx, Inc............................................... 37,500
Moors & Cabot, Inc............................................... 37,500
Xxxxx & Co., Inc................................................. 37,500
Spelman & Co., Inc............................................... 37,500
----------
Total.................................................. 15,000,000
==========
-24-
