Pioneer Municipal High Income Trust
20,500,000 Common Shares of Beneficial Interest
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 20,500,000 common shares of beneficial interest
(the "Firm Shares"), no par value (the "Common Shares"), of the Fund. In
addition, solely for the purpose of covering over-allotments, the Fund proposes
to grant to the Underwriters the option to purchase from the Fund up to an
additional 3,075,000 Common Shares (the "Additional Shares"). The Firm Shares
and the Additional Shares are hereinafter collectively sometimes referred to as
the "Shares." The Shares are described in the Prospectus which is referred to
below.
The 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. 333-103836 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
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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") will act as the Fund's investment adviser pursuant
to an Investment Advisory Agreement by and between the Fund and the Investment
Adviser, dated as of [ ], 2003 (the "Investment Advisory Agreement"). Xxxxx,
Brothers Xxxxxxxx &Co. will act as the custodian (the "Custodian") of the Fund's
cash and portfolio assets pursuant to a Custodian Agreement, dated as of [ ],
2003 (the "Custody Agreement"). Pioneer Investment Management Shareholder
Services, Inc. will act as the Fund's transfer agent (the "Transfer Agent")
pursuant to a transfer agency agreement, dated as of [ ], 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,
LLC have entered into an administration agreement. .The Investment Adviser and
UBS Securities LLC (the "Managing Representative") have entered into a
Shareholder Servicing Agreement dated [ ], 2003 (the "Shareholder Servicing
Agreement") and an Additional Compensation Agreement dated [ ], 2003 (the
"Additional Compensation Agreement"). In addition, the Fund has adopted a
dividend reinvestment plan (the "Dividend Reinvestment Plan") pursuant to which
holders of Shares may elect to reinvest their dividends in additional Common
Shares of the Fund.
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 Firm Shares set forth opposite the name of such Underwriter in
Schedule A attached hereto in each case at a purchase price of $[ ] per
Share. The Fund is advised that the Underwriters intend (i) to make a
public offering of their respective portions of the Firm Shares as soon
after the effective date of the Registration Statement as is advisable and
(ii) initially to offer the Firm Shares upon the terms set forth in the
Prospectus. The Underwriters may from time to time increase or decrease
the public offering price after the initial public offering to such extent
as they may determine.
In addition, the Fund hereby grants to the several Underwriters the
option to purchase, and upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth,
the Underwriters shall have the right to purchase, severally and not
jointly, from the Fund, ratably in accordance with the number of Firm
Shares to be purchased by each of them, all or a portion of the Additional
Shares as may be necessary to cover over-allotments made in connection
with the offering of the Firm Shares, at the same purchase price per
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share to be paid by the Underwriters to the Fund for the Firm Shares. This
option may be exercised by you on behalf of the several Underwriters at
any time and from time to time on or before the forty-fifth day following
the date hereof, by written notice to the Fund. Such notice shall set
forth the aggregate number of Additional Shares as to which the option is
being exercised, and the date and time when the Additional Shares are to
be delivered (such date and time being herein referred to as the
"Additional Time of Purchase"); provided, however, that the Additional
Time of Purchase shall not be earlier than the Time of Purchase (as
defined below) nor earlier than the second business day after the date on
which the option shall have been exercised nor later than the tenth
business day after the date on which the option shall have been exercised.
The number of Additional Shares to be sold to each Underwriter shall be
the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule A hereto bears to the
total number of Firm Shares (subject, in each case, to such adjustment as
you may determine to eliminate fractional shares).
2. Payment and Delivery. Payment of the purchase price for the Firm Shares
shall be made to the Fund by Federal Funds wire transfer, against delivery
of the certificates for the Firm Shares to you through the facilities of
the Depository Trust Company ("DTC") for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New
York City time on the third business day following the date of this
Underwriting Agreement (unless another date or time shall be agreed to by
you and the Fund). The time at which such payment and delivery are
actually made is hereinafter sometimes called the Time of Purchase.
Certificates for the Firm Shares shall be delivered to you in definitive
form in such names and in such denominations as you shall specify on the
second business day preceding the Time of Purchase. For the purpose of
expediting the checking of the certificates for the Firm Shares by you,
the Fund agrees to make such certificates available to you for such
purpose at least one full business day preceding the Time of Purchase.
Payment of the purchase price for the Additional Shares shall be
made at the Additional Time of Purchase in the same manner and at the same
office as the payment for the Firm Shares. Certificates for the Additional
Shares shall be delivered to you in definitive form in such names and in
such denominations as you shall specify no later than the second business
day preceding the Additional Time of Purchase. For the purpose of
expediting the checking of the certificates for the Additional Shares by
you, the Fund agrees to make such certificates available to you for such
purpose at least one full business day preceding the Additional Time of
Purchase. The Time of Purchase and the Additional Time of Purchase are
sometimes referred to herein as the "Closing Dates."
3. Representations and Warranties of the Fund and the Investment Adviser.
Each of the Fund and the Investment Adviser jointly and severally
represents and warrants to each Underwriter as follows:
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(a) On (A) the Effective Date and the date on which the Prospectus is
first filed with the Commission pursuant to Rule 497(b), (h) or (j)
under the Act, as the case may be, (B) the date on which any
post-effective amendment to the Registration Statement (except any
post-effective amendment which is filed with the Commission after
the later of (x) one year from the date of this Underwriting
Agreement or (y) the date on which the distribution of the Shares is
completed) became or becomes effective or any amendment or
supplement to the Prospectus was or is filed with the Commission and
(C) the Closing Dates, the Registration Statement, the Prospectus
and any such amendment or supplement thereto and the Notification
complied or will comply in all material respects with the
requirements of the Act and the Investment Company Act, as the case
may be. On the Effective Date and on the date that any
post-effective amendment to the Registration Statement (except any
post-effective amendment which is filed with the Commission after
the later of (x) one year from the date of this Underwriting
Agreement or (y) the date on which the distribution of the Shares is
completed) became or becomes effective, neither the Registration
Statement nor any such amendment did or will contain any untrue
statement of a material fact or omit to state a material fact
required to be stated in it or necessary to make the statements in
it not misleading. At the Effective Date and, if applicable, the
date the Prospectus or any amendment or supplement to the Prospectus
was or is filed with the Commission and at the Closing Dates, the
Prospectus did not or will not, as the case may be, contain any
untrue statement of a material fact or omit to state a material fact
required to be stated in it or necessary to make the statements in
it, in light of the circumstances under which they were made, not
misleading. The foregoing representations in this Section 3(a) do
not apply to statements or omissions relating to the Underwriters
made in reliance on and in conformity with information furnished in
writing to the Fund by you expressly for use in the Registration
Statement, the Prospectus, or any amendments or supplements thereto,
as described in Section 9(f) hereof.
(b) The Fund has been duly formed, is validly existing as a Delaware
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(n)) 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. The Fund
has no subsidiaries.
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(c) The capitalization of the Fund is as set forth in the Registration
Statement and the Prospectus. The Common Shares conform to the
description of them in the Prospectus. All the outstanding Common
Shares have been duly authorized and are validly issued, fully paid
and, except to the extent set forth in the Prospectus,
nonassessable. The Shares to be issued and delivered to and paid for
by the Underwriters in accordance with this Underwriting Agreement
against payment therefor as provided by this Underwriting Agreement
have been duly authorized and when issued and delivered to the
Underwriters will have been validly issued and will be fully paid
and, except to the extent set forth in the Prospectus,
nonassessable. No person is entitled to any preemptive or other
similar rights with respect to the Shares.
(d) The 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 Securities Act (the "Final Amendment"), if not
already filed, all action under the Act and the Investment Company
Act, as the case may be, necessary under the federal securities laws
on the part of the 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
Custody Agreement, the Transfer Agency Agreement and the Dividend
Reinvestment Plan (collectively, the "Fund Agreements") and to
perform all of the terms and provisions hereof and thereof to be
carried out by it and (i) each Fund Agreement has been duly and
validly authorized, executed and delivered by or on behalf of the
Fund, (ii) each Fund Agreement does not violate in any material
respect any of the applicable provisions of the Investment Company
Act or the Investment Advisers Act of 1940, as amended, and the
rules and regulations thereunder (collectively called the "Advisers
Act"), as the case may be, and (iii) assuming due authorization,
execution and delivery by the other parties thereto, each Fund
Agreement constitutes the legal, valid and binding obligation of the
Fund enforceable in accordance with its terms, (A) subject, as to
enforcement, to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and to general equitable
principles (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (B) except as rights to
indemnity thereunder may be limited by federal or state securities
laws.
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(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 or the By-laws of the Fund 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.
(h) No person has any right to the registration of any securities of the
Fund because of the filing of the Registration Statement.
(i) No consent, approval, authorization or order of any court or
governmental agency or body or securities exchange or association,
whether foreign or domestic, is required to be obtained by the Fund
prior to the Closing Date for the consummation by the Fund of the
transactions to be performed by the Fund or the performance by the
Fund of all the terms and provisions to be performed by or on behalf
of it in each case as contemplated in the Fund Agreements, except
such as (i) have been obtained under the Act, the Investment Company
Act or the Advisers Act, and (ii) may be required by the New York
Stock Exchange or under state securities or "blue sky" laws, in
connection with the purchase and distribution of the Shares by the
Underwriters pursuant to this Underwriting Agreement.
(j) The Shares are duly authorized for listing, subject to official
notice of issuance, on the New York Stock Exchange and the Fund's
Registration Statement on Form 8-A, under the Securities Exchange
Act of 1934, as amended and the rules and regulations thereunder
(the "Exchange Act"), has become effective.
(k) [ ], whose report appears in the Prospectus, are independent public
accountants with respect to the Fund as required by the Act and the
Investment Company Act.
(l) The statement of assets and liabilities included in the Registration
Statement and the Prospectus presents fairly in all material
respects, in accordance with generally accepted accounting
principles in the United States applied on a consistent basis, the
financial position of the Fund as of the date indicated.
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(m) 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.
(n) Since the date as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein,
(i) there has been no material adverse change in the condition,
financial or otherwise, business affairs or business of the 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.
(o) There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other
governmental agency or body, foreign or domestic, now pending, or,
to the knowledge of the Fund, threatened against or affecting the
Fund, which (i) might result in any material adverse change in the
condition, financial or otherwise, business affairs or business
prospects of the Fund or might materially adversely affect the
properties or assets of the Fund or (ii) is of a character required
to be described in the Registration Statement or the Prospectus; and
there are no contracts, franchises or other documents that are of a
character required to be described in, or that are required to be
filed as exhibits to, the Registration Statement that have not been
described or filed as required.
(p) Except for stabilization transactions conducted by the Managing
Representative, and except for tender offers, Share repurchases and
the issuance or purchase of Common Shares pursuant to the Dividend
Reinvestment Plan effected following the date on which the
distribution of the Shares is completed in accordance with the
policies of the Fund as set forth in the Prospectus, the Fund has
not taken and will not take, directly or indirectly, any action
designed or which might be reasonably expected to cause or result
in, or which will constitute, stabilization or manipulation of the
price of the Common Shares in violation of applicable federal
securities laws.
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(q) 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").
(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 other than the definitive client
brochure, which was filed with the NASD on [ ], 2003, and the broker
selling memo (collectively referred to as the "sales materials");
the sales materials and any road show slides or road show tapes
complied and comply in all material respects with the applicable
requirements of the Act and the rules and interpretations of the
NASD; and no broker kits, road show slides, road show tapes or sales
materials authorized or prepared by the 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
and the Additional Compensation Agreement, and the Investment
Adviser is duly licensed and qualified to do business and in good
standing in each jurisdiction in which it is required to be so
qualified in order to perform its obligations under this Agreement,
the Shareholder Servicing Agreement the Investment Advisory
Agreement and the Additional Compensation Agreement; and the
Investment Adviser owns, possesses or has obtained and currently
maintains all governmental licenses, permits, consents, orders,
approvals and other authorizations, whether foreign or domestic,
necessary to perform its obligations under this Agreement, the
Shareholder Servicing Agreement, the Investment Advisory Agreement
and the Additional Compensation Agreement.
(b) The Investment Adviser is (i) registered as an investment adviser
under the Advisers Act and (ii) not prohibited by the Advisers Act
or the Investment Company Act from acting as the investment adviser
for the Fund as contemplated by the Investment Advisory Agreement,
the Registration Statement and the Prospectus.
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(c) The Investment Adviser has full power and authority to enter into
each of this Underwriting Agreement, the Shareholder Servicing
Agreement, the Investment Advisory Agreement and the Additional
Compensation Agreement (collectively, this Underwriting Agreement,
the Shareholder Servicing Agreement, the Investment Advisory
Agreement and the Additional Compensation Agreement being referred
to as the "Investment Adviser Agreements") and to carry out all the
terms and provisions hereof and thereof to be carried out by it; and
each Investment Adviser Agreement has been duly and validly
authorized, executed and delivered by the Investment Adviser; none
of the Investment Adviser Agreements violate any of the applicable
provisions of the Investment Company Act or the Advisers Act; and
assuming due authorization, execution and delivery by the other
parties thereto, each Investment Adviser Agreement constitutes a
legal, valid and binding obligation of the Investment Adviser,
enforceable in accordance with its terms, (i) subject, as to
enforcement, to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and to general equitable
principles (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (ii) except as rights to
indemnity thereunder may be limited by federal or state securities
laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of
any Investment Adviser Agreement nor (ii) the consummation by the
Investment Adviser of the transactions contemplated by, or the
performance of its obligations under any Investment Adviser
Agreement conflicts or will conflict with, or results or will result
in a breach of, the Articles of Incorporation or other
organizational documents of the Investment Adviser or any agreement
or instrument to which the Investment Adviser is a party or by which
the Investment Adviser is bound, or any law, rule or regulation, or
order of any court, governmental instrumentality, securities
exchange or association or arbitrator, whether foreign or domestic,
applicable to the Investment Adviser, except in each case for such
conflicts or breaches which do not, either alone or in the
aggregate, have a material adverse effect upon the Investment
Adviser's ability to perform its obligations under the Investment
Adviser Agreements.
(e) No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or association,
whether foreign or domestic, is required to be obtained by the
Investment Adviser on or prior to the Closing Date for the
consummation of the transactions contemplated in, or the performance
by the Investment Adviser of its obligations under, any Investment
Adviser Agreement, as the case may be, except such as (i) have been
obtained under the Act, the Investment Company Act or the Advisers
Act, and (ii) may be required by the New York Stock Exchange or
under state securities or "blue sky" laws, in connection with the
purchase and distribution of the Shares by the Underwriters pursuant
to this Underwriting Agreement.
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(f) The description of the Investment Adviser and its business, and the
statements attributable to the Investment Adviser, in the
Registration Statement and the Prospectus comply in all material
respects with the requirements of the Act and the Investment Company
Act and do not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading
(and, solely with respect to the Prospectus, in the light of the
circumstances under which they were made).
(g) There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other
governmental agency or body, foreign or domestic, now pending or, to
the knowledge of the Investment Adviser, threatened against or
affecting the Investment Adviser of a nature required to be
disclosed in the Registration Statement or Prospectus.
(h) Except for stabilization activities conducted by the Managing
Representative and except for tender offers, Share repurchases and
the issuance or purchase of Common Shares pursuant to the Dividend
Reinvestment Plan effected following the date on which the
distribution of the Shares is completed in accordance with the
policies of the Fund as set forth in the Prospectus, the Investment
Adviser has not taken and will not take, directly or indirectly, any
action designed, or which might reasonably be expected to cause or
result in, or which will constitute, stabilization or manipulation
of the price of the Common Shares in violation of applicable federal
securities laws.
(i) The Investment Adviser has not made available any promotional
materials intended for use only by qualified broker-dealers and
registered representatives thereof by means of an Internet web site
or similar electronic means.
5. Agreements of the Parties.
(a) If the Registration Statement relating to the Shares has not yet
become effective, the 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
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contained therein omits certain information at the time of
effectiveness pursuant to Rule 430A under the Act, the Fund will
file a 430A Prospectus pursuant to Rule 497(h) under the Act as
promptly as practicable, but no later than the second business day
following the earlier of the date of the determination of the
offering price of the Shares or the date the Prospectus is first
used after the Effective Date. If the Registration Statement has
become effective and the Prospectus contained therein does not so
omit such information, the Fund will file a Prospectus pursuant to
Rule 497(b) or (j) under the Act as promptly as practicable, but no
later than the fifth business day following the date of the later of
the Effective Date or the commencement of the public offering of the
Shares after the Effective Date. In either case, the Fund will
provide you satisfactory evidence of the filing. The Fund will not
file with the Commission any Prospectus or any other amendment
(except any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of this
Underwriting Agreement or (y) the date on which distribution of the
Shares is completed) or supplement to the Registration Statement or
the Prospectus unless a copy has first been submitted to the
Managing Representative a reasonable time before its filing and the
Managing Representative has not objected to it in writing within a
reasonable time after receiving the copy.
(b) For the period of three years from the date hereof, the Fund will
advise the Managing Representative promptly (1) of the issuance by
the Commission of any order in respect of the Fund or the Investment
Adviser or which relates to the offering of the Shares, (2) of the
initiation or threatening of any proceedings for, or receipt by the
Fund of any notice with respect to, the suspension of the
qualification of the Shares for sale in any jurisdiction or the
issuance of any order by the Commission suspending the effectiveness
of the Registration Statement, (3) of receipt by the Fund, or any
representative or attorney of the Fund, of any other communication
from the Commission relating to the offering of the Shares, the
Registration Statement, the Notification, any Preliminary
Prospectus, the Prospectus or to the transactions contemplated by
this Underwriting Agreement and (4) the issuance by any court,
regulatory body, administrative agency or other governmental agency
or body, whether foreign or domestic, of any order, ruling or
decree, or the threat to initiate any proceedings with respect
thereto, regarding the offering of the Shares by the Fund. The Fund
will make every reasonable effort to prevent the issuance of any
order suspending the effectiveness of the Registration Statement
and, if any such order is issued, to obtain its lifting as soon as
possible.
(c) If not delivered prior to the date of this Underwriting Agreement,
the Fund will deliver to the Managing Representative, without
charge, a signed copy of the Registration Statement and the
Notification and of any amendments (except any post-effective
amendment which is filed with the
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Commission after the later of (x) one year from the date of this
Underwriting Agreement or (y) the date on which the distribution of
the Shares is completed) to either the Registration Statement or the
Notification (including all exhibits filed with any such document)
and as many conformed copies of the Registration Statement and any
amendments thereto (except any post-effective amendment which is
filed with the Commission after the later of (x) one year from the
date of this Underwriting Agreement or (y) the date on which the
distribution of the Shares is completed) (excluding exhibits) as the
Managing Representative may reasonably request.
(d) During such period as a prospectus is required by law to be
delivered by an underwriter or a dealer, the Fund will deliver,
without charge, to you, the Underwriters and any dealers, at such
office or offices as you may designate, as many copies of the
Prospectus as you may reasonably request, and, if any event occurs
during such period as a result of which it is necessary to amend or
supplement the Prospectus, in order to make the statements therein,
in light of the circumstances existing when such Prospectus is
delivered to a purchaser of Shares, not misleading in any material
respect, or if during such period it is necessary to amend or
supplement the Prospectus to comply with the Act or the Investment
Company Act, the Fund promptly will prepare, submit to the Managing
Representative, file with the Commission and deliver, without
charge, to the Underwriters and to dealers (whose names and
addresses the Managing Representative will furnish to the Fund) to
whom Shares may have been sold by the Underwriters, and to other
dealers on request, amendments or supplements to the Prospectus so
that the statements in such Prospectus, as so amended or
supplemented, will not, in light of the circumstances existing when
such Prospectus is delivered to a purchaser, be misleading in any
material respect and will comply with the Act and the Investment
Company Act. Delivery by the Underwriters of any such amendments or
supplements to the Prospectus will not constitute a waiver of any of
the conditions in Section 6 hereof.
(e) The Fund will make generally available to holders of the Fund's
securities, as soon as practicable but in no event later than the
last day of the 18th full calendar month following the calendar
quarter in which the Effective Date falls, an earnings statement, if
applicable, satisfying the provisions of Section 11(a) of the Act
and, at the option of the Fund, Rule 158 under the Act.
(f) The Fund will take such actions as the Managing Representative
reasonably requests in order to qualify the Shares for offer and
sale under the securities or "blue sky" laws of such jurisdictions
as the Managing Representative reasonably designates; provided that
the Fund shall not be required in connection therewith or as a
condition thereof to qualify as a foreign corporation or to execute
a general consent to service of process in any jurisdiction.
13
(g) If the transactions contemplated by this Underwriting Agreement are
consummated, the Fund shall pay all costs and expenses incident to
the performance of the obligations of the Fund under this
Underwriting Agreement (to the extent such expenses do not, in the
aggregate, exceed $0.03 per Share), including but not limited to
costs and expenses of or relating to (1) the preparation, printing
and filing of the Registration Statement and exhibits to it, each
Preliminary Prospectus, the Prospectus and all amendments and
supplements thereto, (2) the issuance of the Shares and the
preparation and delivery of certificates for the Shares, (3) the
registration or qualification of the Shares for offer and sale under
the securities or "blue sky" laws of the jurisdictions referred to
in the foregoing paragraph, including the fees and disbursements of
counsel for the Underwriters in that connection, and the preparation
and printing of any preliminary and supplemental "blue sky"
memoranda, (4) the furnishing (including costs of design,
production, shipping and mailing) to the Underwriters and dealers of
copies of each Preliminary Prospectus relating to the Shares, the
sales materials, the Prospectus, and all amendments or supplements
to the Prospectus, and of the other documents required by this
Section to be so furnished, (5) the filing requirements of the NASD,
in connection with its review of the financing, including filing
fees and the fees, disbursements and other charges of counsel for
the Underwriters in that connection, (6) all transfer taxes, if any,
with respect to the sale and delivery of the Shares to the
Underwriters, (7) the listing of the Shares on the New York Stock
Exchange, and (8) the transfer agent for the Shares. To the extent
the foregoing costs and expenses incident to the performance of the
obligations of the Fund under this Underwriting Agreement exceed, in
the aggregate, $0.03 per Share, Investment Adviser or an affiliate
will pay all such excess costs and expenses.
(h) If the transactions contemplated by this Underwriting Agreement are
not consummated, except as otherwise provided herein, no party will
be under any liability to any other party, except that (i) if this
Underwriting Agreement is terminated by (A) the 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, Investment Adviser. or an affiliate and the Fund, jointly
and severally, will reimburse the Underwriters for all out-of-pocket
expenses (including the reasonable fees, disbursements and other
charges of their counsel) reasonably incurred by them in connection
with the proposed purchase and sale of the Shares and (ii) no
Underwriter who has failed or refused to purchase the Shares agreed
to be purchased by it under this Underwriting Agreement, in breach
of its obligations pursuant to this Underwriting Agreement, will be
relieved of liability to the Fund and the Investment Adviser and the
other Underwriters for damages occasioned by its default.
14
(i) Without the prior written consent of the Managing Representative,
the Fund will not offer, sell or register with the Commission, or
announce an offering of, any equity securities of the Fund, within
180 days after the Effective Date, except for the Shares as
described in the Prospectus and any issuances of Common Shares
pursuant to the Dividend Reinvestment Plan and except in connection
with any offering of preferred shares of beneficial interest as
contemplated by the Prospectus.
(j) The Fund will use its best efforts to list the Shares on the New
York Stock Exchange and comply with the rules and regulations of
such exchange.
(k) The 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 each of the Closing Dates, 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
15
of the Fund except as set forth in or contemplated by the Prospectus
(provided that a change in the Fund's net asset value, liabilities
or portfolio securities arising in the course of its normal
investment operations shall not be deemed to be a material adverse
change); (ii) there must not have been any material adverse change
in the general affairs, prospects, management, business, financial
condition or results of operations of the Fund or the Investment
Adviser whether or not arising from transactions in the ordinary
course of business as set forth in or contemplated by the Prospectus
(provided that a change in the Fund's net asset value, liabilities
or portfolio securities arising in the course of its normal
investment operations shall not be deemed to be a material adverse
change); (iii) the Fund must not have sustained any material
interference with its business from any court or from legislative or
other governmental action, order or decree, whether foreign or
domestic, not described in the Registration Statement and
Prospectus; and (iv) there must not have occurred any event that
makes untrue or incorrect in any material respect any statement or
information contained in the Registration Statement or Prospectus or
that is not reflected in the Registration Statement or Prospectus
but should be reflected therein in order to make the statements or
information therein (in the case of the Prospectus, in light of the
circumstances in which they were made) not misleading in any
material respect; if, in the judgment of the Managing
Representative, any such development referred to in clause (i),
(ii), (iii) or (iv) of this paragraph (c) makes it impracticable or
inadvisable to consummate the sale and delivery of the Shares
pursuant to this Underwriting Agreement by the Underwriters, at the
initial public offering price of the Shares.
(d) The Managing Representative must have received on each Closing Date
a certificate, dated such date, of the President, a Vice-President
or Assistant Secretary and the chief financial or accounting officer
of each of the 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
16
prohibiting the sale of any of the Shares has been issued and no
proceedings for any such purpose are pending before or threatened by
the Commission or any other regulatory body, whether foreign or
domestic, (v) no order having a material adverse effect on the
ability of the Investment Adviser to fulfill its obligations under
this Underwriting Agreement, the Shareholder Servicing Agreement,
the Investment Advisory Agreement or the Additional Compensation
Agreement, as the case may be, has been issued and no proceedings
for any such purpose are pending before or threatened by the
Commission or any other regulatory body, whether foreign or
domestic, and (vi) each of the Fund (with respect to the
certificates from such Fund officers) and the Investment Adviser
(with respect to the certificates from such officers of the
Investment Adviser) has performed all of its respective agreements
that this Underwriting Agreement requires it to perform by such
Closing Date (to the extent not waived in writing by the Managing
Representative).
(e) You must receive on each Closing Date the opinions dated such
Closing Date substantially in the form of Schedule B to this
Underwriting Agreement from the counsel identified in each such
Schedules.
(f) You must receive on each Closing Date from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP or its affiliated entities an opinion dated such
Closing Date with respect to the 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
each Closing Date a signed letter from such accountants, dated as of
such Closing Date, confirming on the basis of a review in accordance
with the procedures set forth in their earlier letter that nothing
has come to their attention during the period from a date not more
than five business days before the date of this Underwriting
Agreement, specified in the letter, to a date not more than five
business days before such Closing Date, that would require any
change in their letter referred to in the foregoing sentence.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Underwriting Agreement will comply only if they are in
form and scope reasonably satisfactory to counsel for the Underwriters,
provided that any such documents, forms of which are annexed hereto, shall
be deemed satisfactory to such counsel if substantially in such form.
17
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 any Closing Date if, in the sole judgment of the
Managing Representative, payment for and delivery of any Shares is
rendered impracticable or inadvisable because (i) trading in the
equity securities of the Fund is suspended by the Commission or by
the principal exchange that lists the Shares, (ii) trading in
securities generally on the New York Stock Exchange or the Nasdaq
Stock Market shall have been suspended or limited or minimum or
maximum prices shall have been generally established on such
exchange or over-the-counter market, (iii) additional material
governmental restrictions, not in force on the date of this
Underwriting Agreement, have been imposed upon trading in securities
or trading has been suspended on any U.S. securities exchange, (iv)
a general banking moratorium has been established by U.S. federal or
New York authorities or (v) any material adverse change in the
financial or securities markets in the United States or in
political, financial or economic conditions in the United States or
any outbreak or material escalation of hostilities or declaration by
the United States of a national emergency or war or other calamity
or crisis shall have occurred the effect of any of which is such as
to make it, in the sole judgment of the Managing Representative,
impracticable or inadvisable to market the Shares on the terms and
in the manner contemplated by the Prospectus; or
(c) at or before any Closing Date, if any of the conditions specified in
Section 6 have not been fulfilled when and as required by this
Underwriting Agreement.
8. Substitution of Underwriters. If one or more of the Underwriters fails
(other than for a reason sufficient to justify the termination of this
Underwriting Agreement) to purchase on any Closing Date the Shares agreed
to be purchased on such Closing Date by such Underwriter or Underwriters,
the Managing Representative may find one or more substitute underwriters
to purchase such Shares or make such other arrangements as the Managing
Representative deems advisable, or one or more of the remaining
Underwriters may agree to purchase such Shares in such proportions as may
be approved by the Managing Representative, in each case upon the terms
set forth in this Underwriting Agreement. If no such arrangements have
been made within 36 hours after such Closing Date, and
18
(a) the number of Shares to be purchased by the defaulting Underwriters
on such Closing Date does not exceed 10% of the Shares that the
Underwriters are obligated to purchase on such Closing Date, each of
the nondefaulting Underwriters will be obligated to purchase such
Shares on the terms set forth in this Underwriting Agreement in
proportion to their respective obligations under this Underwriting
Agreement, or
(b) the number of Shares to be purchased by the defaulting Underwriters
on such Closing Date exceeds 10% of the Shares to be purchased by
all the Underwriters on such Closing Date, the 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 applicable Closing Date for not more
than five business days in order that necessary changes and arrangements
(including any necessary amendments or supplements to the Registration
Statement or the Prospectus) may be effected by the Managing
Representative and the Fund. If the number of Shares to be purchased on
such Closing Date by such defaulting Underwriter or Underwriters exceeds
10% of the Shares that the Underwriters are obligated to purchase on such
Closing Date, and none of the nondefaulting Underwriters or the 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
19
out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement
(or in the Registration Statement as amended by any post-effective
amendment thereof by the Fund) or in a Prospectus (the term
"Prospectus" for the purpose of this Section 9 being deemed to
include any Preliminary Prospectus, the 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,
20
but the fees and expenses of such counsel shall be at the expense of
such Underwriter or of such person unless the employment of such
counsel shall have been authorized in writing by the Fund or the
Investment Adviser, as the case may be, in connection with the
defense of such Proceeding or the Fund or the Investment Adviser
shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of
such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or
them which are different from, additional to or in conflict with
those available to the Fund or the Investment Adviser (in which case
the Fund or the Investment Adviser shall not have the right to
direct the defense of such Proceeding on behalf of the indemnified
party or parties), in any of which events such fees and expenses
shall be borne by the Fund or the Investment Adviser and paid as
incurred (it being understood, however, that the Fund or the
Investment Adviser shall not be liable for the expenses of more than
one separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such
Proceeding). None of the Fund or the Investment Adviser shall be
liable for any settlement of any Proceeding effected without its
written consent but if settled with the written consent of the Fund
or the Investment Adviser, the Fund or the Investment Adviser, as
the case may be, agrees to indemnify and hold harmless any
Underwriter and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that
it shall be liable for any settlement of any Proceeding effected
without its written consent if (i) such settlement is entered into
more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not
have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least
30 days' prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened Proceeding
in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that
are the subject matter of such Proceeding and does not include an
admission of fault, culpability or a failure to act, by or on behalf
of such indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Fund and the Investment Adviser, its directors and
officers, and any
21
person who controls the Fund or the Investment Adviser within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and the successors and assigns of all of the foregoing persons from
and against any loss, damage, expense, liability or claim (including
the reasonable cost of investigation) which, jointly or severally,
the Fund or the Investment Adviser or any such person may incur
under the Act, the Exchange Act, the Investment Company Act, the
Advisers Act, the common law or otherwise, insofar as such loss,
damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact
contained in and in conformity with information furnished in writing
by or on behalf of such Underwriter through you to the Fund or the
Investment Adviser expressly for use with reference to such
Underwriter in the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the
Fund) or in a Prospectus, or arises out of or is based upon any
omission or alleged omission to state a material fact in connection
with such information required to be stated in such Registration
Statement or such Prospectus or necessary to make such information
not misleading.
If any Proceeding is brought against the Fund, the Investment
Adviser, or any such person in respect of which indemnity may be
sought against any Underwriter pursuant to the foregoing paragraph,
the Fund or the Investment Adviser or such person shall promptly
notify such Underwriter in writing of the institution of such
Proceeding and such Underwriter shall assume the defense of such
Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and
expenses; provided, however, that the omission to so notify such
Underwriter shall not relieve such Underwriter from any liability
which such Underwriter may have to the Fund, the Investment Adviser,
or any such person or otherwise. The Fund, the Investment Adviser,
or such person shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the
expense of the Fund, the Investment Adviser, or such person, as the
case may be, unless the employment of such counsel shall have been
authorized in writing by such Underwriter in connection with the
defense of such Proceeding or such Underwriter shall not have,
within a reasonable period of time in light of the circumstances,
employed counsel to have charge of the defense of such Proceeding or
such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are
different from or additional to or in conflict with those available
to such Underwriter (in which case such Underwriter shall not have
the right to direct the defense of such Proceeding on behalf of the
indemnified party or parties, but such Underwriter may employ
counsel and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such
Underwriter), in any of which events such fees and expenses shall be
borne by such Underwriter and paid as incurred (it being understood,
22
however, that such Underwriter shall not be liable for the expenses
of more than one separate counsel (in addition to any local counsel)
in any one Proceeding or series of related Proceedings in the same
jurisdiction representing the indemnified parties who are parties to
such Proceeding). No Underwriter shall be liable for any settlement
of any such Proceeding effected without the written consent of such
Underwriter but if settled with the written consent of such
Underwriter, such Underwriter agrees to indemnify and hold harmless
the Fund or the Investment Adviser and any such person from and
against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement
of any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement
and (iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes
an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such Proceeding.
(c) If the indemnification provided for in this Section 9 is unavailable
to an indemnified party under subsections (a) and (b) of this
Section 9 in respect of any losses, damages, expenses, liabilities
or claims referred to therein, then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party
as a result of such losses, damages, expenses, liabilities or claims
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Fund and the Investment Adviser on the one
hand and the Underwriters on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Fund and the Investment
Adviser on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such
losses, damages, expenses, liabilities or claims, as well as any
other relevant equitable considerations. The relative benefits
received by the Fund or the Investment Adviser on the one hand and
the Underwriters on the other shall be deemed to be in the same
respective
23
proportions as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting
expenses) received by the Fund and the total underwriting discounts
and commissions received by the Underwriters, bear to the aggregate
public offering price of the Shares. The relative fault of the Fund
and the Investment Adviser on the one hand and of the Underwriters
on the other shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement of
a material fact or omission or alleged omission relates to
information supplied by the Fund or the Investment Adviser or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to in
this subsection shall be deemed to include any legal or other fees
or expenses reasonably incurred by such party in connection with
investigating, preparing to defend or defending any Proceeding.
(d) The Fund and the Investment Adviser and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the
equitable considerations referred to in subsection (c) above.
Notwithstanding the provisions of this Section 9, no Underwriter
shall be required to contribute any amount in excess of the fees and
commissions received by such Underwriter. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 9 are several in
proportion to their respective underwriting commitments and not
joint.
(e) The indemnity and contribution agreements contained in this Section
9 and the covenants, warranties and representations of the Fund
contained in this Agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors or officers or any person
(including each partner, officer or director of such person) who
controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, or by or on behalf of the Fund,
the Investment Adviser, its directors or officers or any person who
controls the Fund, the Investment Adviser within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and shall
survive any termination of this Agreement or the issuance and
delivery of the Shares. The Fund or the Investment Adviser and each
Underwriter agree promptly to notify each other of the commencement
of any Proceeding against it and, in the case of the Fund, the
Investment Adviser, against any of the Fund's, the Investment
Adviser's officers or directors in connection with the issuance and
sale of the Shares, or in connection with the Registration Statement
or Prospectus.
24
(f) The Fund and the Investment Adviser each acknowledge that the
statements with respect to (1) the public offering of the Shares as
set forth on the cover page of and (2) the statements relating to
stabilization, to selling concessions and reallowances of selling
concessions and with respect to discretionary accounts under the
caption "Underwriting" in the Prospectus constitute the only
information furnished in writing to the Fund by the Managing
Representative on behalf of the Underwriters expressly for use in
such document. The Underwriters severally confirm that these
statements are correct in all material respects and were so
furnished by or on behalf of the Underwriters severally for use in
the Prospectus.
(g) Notwithstanding any other provisions in this Section 9, no party
shall be entitled to indemnification or contribution under this
Underwriting Agreement against any loss, claim, liability, expense
or damage arising by reason of such person's willful misfeasance,
bad faith, gross negligence or reckless disregard in the performance
of its duties hereunder.
10. Notices. Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing or by telegram and, if to the
Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention:
Syndicate Department and, if to the Fund or the Investment Adviser, shall
be sufficient in all respects if delivered or sent to the Fund or the
Investment Adviser, as the case may be, at the offices of the Fund or the
Investment Adviser at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxxxxx.
11. Governing Law; Construction. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way
relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of
New York. The Section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this Agreement.
12. Submission to Jurisdiction. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of
the State of New York located in the City and County of New York or in the
United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and
the Fund consents to the jurisdiction of such courts and personal service
with respect thereto. The Fund hereby consents to personal jurisdiction,
service and venue in any court in which any Claim arising out of or in any
way relating to this Agreement is brought by any third party against UBS
Securities LLC or any indemnified party. Each of UBS Securities LLC, the
Fund (on its behalf and, to the extent permitted by applicable law, on
behalf of its stockholders and affiliates) and the Investment
25
Adviser (on its behalf and, to the extent permitted by applicable law, on
behalf of its stockholders and affiliates) waives all right to trial by
jury in any action, proceeding or counterclaim (whether based upon
contract, tort or otherwise) in any way arising out of or relating to this
Agreement. Each of the Fund and the Investment Adviser agrees that a final
judgment in any such action, proceeding or counterclaim brought in any
such court may be enforced in any other courts in the jurisdiction of
which the Fund or the Investment Adviser, as the case may be, is or may be
subject, by suit upon such judgment.
13. Parties at Interest. The Agreement herein set forth has been and is made
solely for the benefit of the Underwriters 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
Agreement and Declaration of Trust of the Fund 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.
26
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:
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
27
SCHEDULE A
Number of Shares
Name to be Purchased
---- ---------------
UBS Securities LLC [ ]
[] [ ]
Total.................................................................[ ]
29
SCHEDULE B
FORM OF OPINION OF
XXXX & XXXX REGARDING THE FUND
UBS Securities LLC
As Representative of the
Several Underwriters
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Pioneer Municipal High Income Trust
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 6(e) of the
Underwriting Agreement, dated as of July [ ], 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 business trust (the "Trust").
Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings ascribed to them in the Underwriting Agreement.
We have acted as counsel for the Trust and the Adviser in connection with
the sale to the Underwriters by the Trust of [ ] Common Shares of beneficial
interest, no par value per share, of the Trust (collectively, the "Common
Shares") pursuant to the Section 1 of the Underwriting Agreement. As such
counsel, we have assisted in the preparation and filing with the Securities and
Exchange Commission (the "Commission") of the Trust's Registration Statement on
Form N-2 dated Xxxxx 00, 0000 (Xxxx Nos. 333-103836 and 811-21321), and
amendment Nos. 1, 2 and 3 thereto, which Registration Statement became effective
on July [ ], 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 July [ ], 2003 and statement of additional
information dated July [ ], 2003 included therein, as filed pursuant to Rule 497
of the Securities Act of 1933, as amended (the "Securities Act"), on July [ ],
2003, are referred to herein as the "Prospectus" and the "Statement of
Additional Information."
We have examined and relied upon the Agreement and Declaration of Trust
(the "Declaration of Trust") and By-Laws of the Trust, each as amended to date,
the Certificate of Incorporation and By-Laws of the Adviser, each as amended to
date, records of meetings or written actions of shareholders and of the Board of
Trustees of the Trust, trust proceedings of the Trust in connection with the
authorization and issuance of the Common Shares, the Registration Statement, the
Prospectus, the Statement of Additional Information, the Underwriting Agreement,
records of meetings of the Board
of Directors of the Adviser, certificates of representatives of the Trust,
certificates of public officials and such other documents as we have deemed
necessary as a basis for the opinions hereinafter expressed. We have assumed
that all corporate or trust records of the Trust and the Adviser and stock books
of the Trust and are complete and accurate.
Insofar as this opinion relates to factual matters, information with
respect to which is in the possession of the Trust or the Adviser, we have
relied, with your permission, upon certificates, statements and representations
of officers and other representatives of the Trust and the Adviser,
representations made in the Underwriting Agreement and statements contained in
the Registration Statement. We have not attempted to verify independently such
facts, although nothing has come to our attention which has caused us to
question the accuracy of such certificates, statements or representations.
In our examination of the documents referred to above, we have assumed the
genuineness of all signatures, the legal capacity of each individual signing
such documents, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as copies,
and the authenticity of the originals of such documents.
Any reference to "our knowledge" or "best of our knowledge" or to any
matters "known to us," "of which we are aware" or "coming to our attention" or
any variation of any of the foregoing, shall mean the conscious awareness, as to
the existence or absence of any facts which would contradict the opinions and
statements so expressed, of the attorneys of this firm who have rendered
substantive attention to the transaction to which this opinion relates. Other
than as expressly set forth below, we have not undertaken, for purposes of this
opinion, any independent investigation to determine the existence or absence of
such facts, and no inference as to our knowledge of the existence or absence of
such facts should be drawn from the fact of our representation of the Trust and
the Adviser. Moreover, we have not searched any electronic databases or the
dockets of any court, regulatory body or administrative or other governmental
agency or other filing office in any jurisdiction.
For purposes of this opinion, we have assumed that the agreements referred
to herein have been duly authorized, executed and delivered by all parties
thereto other than the Trust, and that all such other parties have all requisite
power and authority to effect the transactions contemplated by such agreements.
We have also assumed that each such agreement is the valid and binding
obligation of each party thereto other than the Trust and is enforceable against
all such other parties in accordance with its terms. We do not render any
opinion as to the application of any federal or state law or regulation to the
power, authority or competence of any party to the agreements other than the
Trust.
Our opinions set forth below are qualified to the extent that they may be
subject to or affected by (i) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws relating to or affecting the
rights of creditors generally, (ii) statutory or decisional law concerning
recourse by creditors to security in the absence of notice or hearing, (iii)
duties and standards imposed on creditors and parties to contracts, including,
without limitation, requirements of good faith, reasonableness and fair dealing,
and (iv) general equitable principles. We express no
B-2
opinion as to the availability of any equitable or specific remedy upon any
breach of any of the agreements as to which we are opining herein, or any of the
agreements, documents or obligations referred to therein, or to the successful
assertion of any equitable defenses, inasmuch as the availability of such
remedies or the success of any equitable defense may be subject to the
discretion of a court. Without limiting the foregoing, with respect to our
opinion in paragraphs 9 and 17 below, (i) we are expressing no opinion as to the
enforceability of the indemnification or contribution provisions of the
Underwriting Agreement, (ii) we note that a court may refuse to enforce, or may
limit the application of, the Underwriting Agreement or certain provisions
thereof, as unconscionable or contrary to public policy, and (iii) we have
assumed compliance by all parties with federal and state securities laws.
We also express no opinion herein as to any provision of any agreement (a)
which may be deemed to or construed to waive any right of the Trust or the
Adviser, (b) to the effect that rights and remedies are not exclusive, that
every right or remedy is cumulative and may be exercised in addition to or with
any other right or remedy and does not preclude recourse to one or more other
rights or remedies, (c) relating to the effect of invalidity or unenforceability
of any provision of any agreement on the validity or enforceability of any other
provision thereof, (d) requiring the payment of penalties, consequential damages
or liquidated damages, (e) which is in violation of public policy, including,
without limitation, any provision relating to non-competition and
non-solicitation or relating to indemnification and contribution with respect to
securities law matters, (f) purporting to indemnify any person against his, her
or its own negligence or intentional misconduct, (g) which provides that the
terms of any agreement may not be waived or modified except in writing or (h)
relating to choice of law or consent to jurisdiction.
Our opinion expressed in paragraph 1 below as to the legal existence and
good standing of the Trust is based solely on a certificate of legal existence
issued by the Secretary of State of the State of Delaware, a copy of which has
been made available to your counsel, and our opinion with respect to such
matters is rendered as of the date of such certificate and limited accordingly.
Our opinion expressed in paragraph 14 below as to the legal existence and good
standing of the Adviser is based solely on a certificate of legal existence
issued by the Secretary of State of the State of Delaware, a copy of which has
been made available to your counsel, and our opinion with respect to such
matters is rendered as of the date of such certificate and limited accordingly.
We express no opinion as to the tax good standing of the Trust or the Adviser in
any jurisdiction.
In connection with our opinion expressed in paragraph 2 below, insofar as
it relates to full payment for the outstanding Common Shares of the Trust, we
have relied solely on a certificate of an officer of the Trust. Our opinion
expressed in paragraph 2 below as to issued and outstanding shares of beneficial
interest of the Trust is based solely on a certificate of the Trust's transfer
agent, which we assume to be complete and accurate. Our opinion expressed in
paragraph 2 below as to the due and valid issuance of all outstanding Common
Shares of the Trust is based solely on a review of the corporate minute books of
the Trust, and a certificate of an officer of the Trust, each of which we assume
to be complete and accurate.
B-3
Our opinions expressed in paragraphs 4 and 10 below as to the
effectiveness of the Registration Statement under the Securities Act and the
Trust's Registration Statement on Form 8-A under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), are based solely upon oral advice from
Xx. Xxxxxxx Xxxxxx at the Division of Investment Management of the Commission
that such Registration Statements were declared effective as of [ ] p.m. on July
[ ], 2003. Our opinion expressed in paragraph 10 below as to the listing of the
Common Shares on the New York Stock Exchange (the "Exchange") is solely based
upon a letter from the Exchange to the Trust, dated July [ ], 2003. Our opinion
in paragraph 15 is based solely upon the Commission's Investment Adviser Public
Disclosure Website as of the date of this opinion.
We are opining herein solely with respect to the state laws of The
Commonwealth of Massachusetts, the Delaware Statutory Trust statute, the
Delaware Corporation Law statute, and the federal laws of the United States of
America. To the extent that the laws of any other jurisdiction govern any of the
matters as to which we express an opinion below, we have assumed for purposes of
this opinion, with your permission and without independent investigation, that
the laws of such jurisdiction are identical to the 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 [ ], 2003 (the "Shareholder Servicing Agreement") and the Additional
Compensation Agreement between the Adviser and UBS Securities LLC, dated July [
], 2003 (the "Additional Compensation Agreement"), are governed by New York law.
We express no opinion with respect to the securities or Blue Sky laws of any
state of the United States, with respect to state or federal antifraud laws
(except to the extent expressly provided in the third to last paragraph below)
or with respect to the approval by the National Association of Securities
Dealers, Inc. of the offering.
On the basis of and subject to the foregoing, we are of the opinion that:
1. The Trust is validly existing as a statutory trust in good standing under
the state laws of the State of Delaware and has business trust power and
authority to carry on its business and own, lease and operate its
properties as described in the Prospectus, and to enter into and perform
its obligations under the Underwriting Agreement.
2. The authorized, issued and outstanding shares of beneficial interest of
the Trust as of the date of the Prospectus are as set forth in the
Statement of Additional Information under the caption "Financial
Highlights." All issued and outstanding shares of beneficial interest of
the Trust as of the date hereof have been duly authorized, validly issued,
and fully paid and are not subject to any preemptive or similar statutory
rights under the Delaware Statutory Trust statute or, to our knowledge,
similar contractual rights granted by the Trust.
3. The Common Shares have been duly authorized and, when issued and delivered
to the Underwriters against payment therefor pursuant to the Underwriting
Agreement, will be validly issued and fully paid.
B-4
4. The Registration Statement has been declared effective under the
Securities Act. Any required filing of the Prospectus pursuant to Rule
497(c) or Rule 497(h) has been made in the manner and within the time
period required by Rule 497. To the best of our knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued
under the Securities Act. To the best of our knowledge, no order of
suspension or revocation of registration pursuant to Section 8(e) of the
Investment Company Act of 1940, as amended (the "1940 Act"), has been
issued, and no proceedings for any such purpose have been instituted or
are pending or threatened by the Commission.
5. The Trust is registered with the Commission under the 1940 Act as a
closed-end, diversified management investment company; and to our
knowledge, no order of suspension or revocation of such registration has
been issued nor have any proceedings therefor been initiated or, to the
best of our knowledge, threatened by the Commission.
6. The Underwriting Agreement has been duly authorized, executed and
delivered by the Trust and the Adviser.
7. Each of the Investment Advisory Agreement between the Trust and the
Adviser, dated [ ], 2003 (the "Investment Advisory Agreement"), the
Custodian Agreement between the Trust and [ ], dated [ ], 2003 (the
"Custodian Agreement"), the Transfer Agency Agreement between the Trust
and Pioneer Investment Management Shareholder Services, Inc., dated [ ],
2003 (the "Transfer Agency Agreement"), the Underwriting Agreement, the
Shareholder Servicing Agreement and the Additional Compensation Agreement
comply in all material respects with all applicable provisions of the 1940
Act, the Investment Advisers Act of 1940, as amended (the "Advisers Act"),
and the rules and regulations of the Commission under the 1940 Act and the
Advisers Act.
8. Each of the Investment Advisory Agreement, the Custodian Agreement, and
the Transfer Agency Agreement, has been duly authorized by all requisite
action on the part of the Trust, and duly executed and delivered by the
Trust, as of the dates noted therein. Assuming due authorization,
execution and delivery by the other parties thereto, each of the
Investment Advisory Agreement, the Custodian Agreement, and the Transfer
Agency Agreement constitutes a valid and binding agreement of the Trust,
enforceable against the Trust in accordance with its terms.
9. The execution, delivery and performance of the Investment Advisory
Agreement, Transfer Agency Agreement, Custodian Agreement and the
Underwriting Agreement by the Trust, the compliance by the Trust with all
the provisions thereof and the consummation by the Trust of the
transactions contemplated thereby (including the issuance and sale of the
Common Shares and the use of the proceeds from the sale of the Common
Shares as described in the Prospectus under the caption "Use of Proceeds")
do not and will not (A) require any consent, approval, authorization or
other order of, or qualification with, any Massachusetts state or U.S.
federal court or governmental body or agency (except such as may
B-5
be required under the securities or Blue Sky laws of the various states or
the National Association of Securities Dealers, Inc. or as have been
obtained under the federal securities laws), (B) conflict with or
constitute a breach of any of the terms or provisions of, or a default
under, or result in the imposition of a lien, charge or encumbrance upon
the assets of the Trust pursuant to any indenture, loan agreement,
mortgage, lease or other agreement or instrument filed as an exhibit to
the Registration Statement, (C) violate or conflict with the Declaration
of Trust or By-laws, (D) violate or conflict with any applicable U.S.
federal or Massachusetts state law, rule or regulation which in our
experience is normally applicable in transactions of the type contemplated
by the Underwriting Agreement, or (E) violate or conflict with any
judgment, order or decree specifically naming the Trust or specifically
applicable to the Trust's property of which we are aware.
10. The Common Shares have been approved for listing on the New York Stock
Exchange and the Trust's Registration Statement on Form 8-A under the
Exchange Act has been declared effective.
11. To our knowledge, there are no legal or governmental proceedings pending
or threatened against the Trust.
12. The statements in the Prospectus under the captions "Description of
shares" and in Item 29 of Part C of the Registration Statement, insofar as
such statements constitute matters of law or legal conclusions, are
correct in all material respects.
13. The Trust does not require any tax or other rulings to enable it to
qualify as a regulated investment company under Subchapter M of the
Internal Revenue Code of 1986, as amended.
14. The Adviser is validly existing as a corporation under the laws of the
State of Delaware. The Adviser the corporate power and authority to own,
lease and operate its properties and to conduct its business as described
in the Prospectus and to enter into and perform its obligations under the
Underwriting Agreement, the Shareholder Servicing Agreement, the
Additional Compensation Agreement and the Investment Advisory Agreement.
15. The Adviser is registered as an investment adviser under the Advisers Act
and is not prohibited by the Advisers Act or the 1940 from acting as
investment adviser for the Fund as contemplated by the Investment Advisory
Agreement, the Registration Statement and the Prospectus.
16. The Shareholder Servicing Agreement, the Investment Advisory Agreement and
the Additional Compensation Agreement have been duly authorized, executed
and delivered by the Adviser and each constitutes a valid and binding
obligation of the Adviser, enforceable in accordance with their respective
terms.
B-6
17. The execution, delivery and performance of the Shareholder Servicing
Agreement, the Investment Advisory Agreement, the Underwriting Agreement
and the Additional Compensation Agreement by the Adviser, the compliance
by the Adviser with all the provisions thereof and the consummation by the
Adviser of the transactions contemplated thereby do not and will not (A)
require any consent, approval, authorization or other order of, or
qualification with, any Massachusetts state or U.S. federal court or
governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states or the National
Association of Securities Dealers, Inc. or as have been obtained under the
federal securities laws), (B) conflict with or constitute a breach of any
of the terms or provisions of, or a default under, or result in the
imposition of a lien, charge or encumbrance upon the assets of the Adviser
pursuant to any indenture, loan agreement, mortgage, lease or other
agreement or instrument filed as an exhibit to the Registration Statement,
(C) violate or conflict with the Certificate of Incorporation or By-laws
of the Adviser, (D) violate or conflict with the Delaware Corporation Law
statute or any applicable U.S. federal or Massachusetts state law, rule or
regulation which in our experience is normally applicable in transactions
of the type contemplated by the Underwriting Agreement, or (E) violate or
conflict with any judgment, order or decree specifically naming the
Adviser or specifically applicable to the Adviser's property of which we
are aware.
18. To our knowledge, there is no legal or governmental proceeding pending or
threatened against the Adviser that is either: (1) required by the
Securities Act or the 1940 Act and their Rules and Regulations to be
described in the Registration Statement or Prospectus that is not already
described, or: (2) which would, under Section 9 of the 1940 Act, make the
Adviser ineligible to act as the Fund's investment adviser.
19. Each of the section in the Prospectus entitled "U.S. Federal Income Tax
Matters" and the section in the Statement of Additional Information
entitled "U.S. Federal Income Tax Matters" is a fair summary of the
principal United States federal income tax rules currently in effect
applicable to the Trust and to the purchase, ownership and disposition of
the Common Shares.
20. The Registration Statement, including any Rule 430A Information, the
Prospectus and each amendment or supplement to the Registration Statement
and Prospectus as of their respective effective or issue dates (other than
the financial statements and supporting schedules including the notes and
schedules thereto, or any other financial or accounting data included
therein or omitted therefrom, as to which we express no opinion), and the
notification on Form N-8A complied as to form in all material respects
with the requirements of the Securities Act, the 1940 Act and the rules
and regulations of the Commission thereunder.
In connection with the preparation of the Registration Statement, the
Prospectus and the Statement of Additional Information, we have participated in
conferences with officers and representatives of the Trust and the Adviser,
representatives of the
B-7
Underwriters, counsel for the Underwriters and the independent accountants of
the Trust, at which conferences we made inquiries of such persons and others and
discussed the contents of the Registration Statement and the Prospectus and the
Statement of Additional Information. While the limitations inherent in the
independent verification of factual matters and the character of determinations
involved in the registration process are such that we are not passing upon and
do not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement, the Prospectus or the
Statement of Additional Information, subject to the foregoing and based on such
participation, inquiries and discussions, no facts have come to our attention
which have caused us to believe that the Registration Statement, as of the
Effective Date (but after giving effect to changes incorporated pursuant to Rule
430A under the Securities Act), contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading (except that we
express no such view with respect to the financial statements, including the
notes and schedules thereto, or any other financial or accounting data included
therein or information relating to the Underwriters or the method of
distribution of the Common Shares by the Underwriters included therein), or that
the Prospectus and Statement of Additional Information, as of the date filed
with the Commission pursuant to Rule 497 under the Securities Act or as of the
date hereof, contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading (except
that we express no such view with respect to the financial statements, including
the notes and schedules thereto, or any other financial or accounting data
included therein or information relating to the Underwriters or the method of
distribution of the Common Shares by the Underwriters included therein).
This opinion is based upon currently existing statutes, rules, regulations
and judicial decisions and is rendered as of the date hereof, and we disclaim
any obligation to advise you of any change in any of the foregoing sources of
law or subsequent developments in law or changes in facts or circumstances which
might affect any matters or opinions set forth herein. Please note that we are
opining only as to the matters expressly set forth herein, and no opinion should
be inferred as to any other matters.
This opinion is being furnished to you, as Managing Representative of the
Underwriters, at the request of the Trust pursuant to the Underwriting
Agreement, is solely for the benefit of the Underwriters, and may not be relied
upon by you for any other purpose, or furnished to, quoted to or relied upon by
any other party for any purpose, without our prior written consent. We
understand that Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois) in delivering
their opinion pursuant to Section 6(f) of the Underwriting Agreement is relying
upon this opinion as to matters of the state laws of The Commonwealth of
Massachusetts. We consent to such reliance.
Very truly yours,
XXXX AND XXXX LLP
B-8
SCHEDULE C
FORM OF ACCOUNTANT'S LETTER
June , 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. 333-103836) and under the Investment Company Act of
1940 (the "1940 Act") (File No. 811-21321); such statement and our report with
respect to such statement are included in the Registration Statement.
In connection with the Registration Statement:
1. We are independent public accountants with respect to the Fund
within the meaning of the Act and the applicable rules and regulations
thereunder.
2. In our opinion, the statement of assets and liabilities included
in the Registration Statement and audited by us complies as to form in all
respects with the applicable accounting requirements of the Act, the 1940
Act and the respective rules and regulations thereunder.
3. For purposes of this letter we have read the minutes of all
meetings of the Shareholders, the Board of Trustees and all Committees of
the Board of Trustees of the Fund as set forth in the minute books at the
offices of the Fund, officials of the Fund having advised us that the
minutes of all such meetings through ______, 2003, were set forth therein.
4. Fund officials have advised us that no financial statements as of
any date subsequent to ______, 2003, are available. We have made inquiries
of
certain officials of the Fund who have responsibility for financial and
accounting matters regarding whether there was any change at , 2003, in
the capital shares or net assets of the Fund as compared with amounts
shown in the , 2003, statement of assets and liabilities included in the
Registration Statement, except for changes that the Registration Statement
discloses have occurred or may occur. On the basis of our inquiries and
our reading of the minutes as described in Paragraph 3, nothing came to
our attention that caused us to believe that there were any such changes.
The foregoing procedures do not constitute an audit made in accordance
with generally accepted auditing standards. Accordingly, we make no
representations as to the sufficiency of the foregoing procedures for your
purposes.
This letter is solely for the information of the addressees and to assist
the underwriters in conducting and documenting their investigation of the
affairs of the Fund in connection with the offering of the securities covered by
the Registration Statement, and is not to be used, circulated, quoted or
otherwise referred to within or without the underwriting group for any other
purpose, including but not limited to the registration, purchase or sale of
securities, nor is it to be filed with or referred to in whole or in part in the
Registration Statement or any other document, except that reference may be made
to it in the underwriting agreement or in any list of closing documents
pertaining to the offering of the securities covered by the Registration
Statement.
Very Truly Yours,
C-2
