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Exhibit 99(h)(1)
FORM OF UNDERWRITING AGREEMENT
2,666,667 SHARES*
OF BENEFICIAL INTEREST
XXXXX XXXXX PENNSYLVANIA MUNICIPAL INCOME TRUST
UNDERWRITING AGREEMENT
January 26, 1999
PAINEWEBBER INCORPORATED
X.X. XXXXXXX & SONS, INC.
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXX XXXXX XXXXXX INC.
XXXXXXXXXX & CO. INC.
XXXXXX XXXXXXXXXX XXXXX INC.
as Representatives of the Several Underwriters
named in Schedule 1 hereto
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxx Xxxxx Pennsylvania Municipal Income Trust, a Massachusetts
business trust (the "Trust"), proposes to issue and sell to you and the other
underwriters named in Schedule 1 hereto (the "Underwriters"), for whom you are
acting as representatives (the "Representatives"), up to 2,666,667 shares of
beneficial interest (the "Firm Shares"), par value $.01 per share (the "Shares
of Beneficial Interest"). In addition, the Trust hereby grants to the
Underwriters an option (the "Option") to purchase up to an additional 400,000 of
its Shares (the "Option Shares") solely for the purpose of covering
over-allotments. The Firm Shares and the Option Shares are referred to
collectively herein as the "Shares."
Xxxxx Xxxxx Management, a Massachusetts business trust ("Xxxxx
Xxxxx" or the "Investment Adviser"), will act as the Trust's investment adviser
pursuant to an Investment Advisory Agreement by and between the Trust and the
Invest-
--------
* Plus an option to purchase, in the aggregate, up to 400,000 additional
Shares to cover over-allotments.
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ment Adviser, dated as of January 29, 1999 (the "Investment Advisory
Agreement"). The Trust has engaged Xxxxx Xxxxx to act as its administrator
pursuant to an Administration Agreement, dated as of January 29, 1999. Investors
Bank & Trust Company ("IBT") will act as the custodian (the "Custodian") of the
Trust's cash and portfolio assets pursuant to a Custody Agreement, effective as
of January 29, 1999 (the "Custody Agreement"). First Data Investor Services
Group will act as the Trust's transfer agent and dividend disbursing agent (the
"Transfer Agent") pursuant to a transfer agency agreement, dated as of January
29, 1999 (the "Transfer Agency Agreement"). In addition, Xxxxx Xxxxx has
retained PaineWebber Incorporated, which is also one of the Underwriters, to
serve as the Trust's Shareholder Servicing Agent pursuant to a shareholder
servicing agreement (the "Shareholder Servicing Agreement"), dated as of January
29, 1999.
The Trust and the Investment Adviser each hereby confirms as follows
their agreements with the Representatives and the several other Underwriters.
1. Sale and Purchase; Compensation
(a) The Trust will issue and sell to each Underwriter, and
each Underwriter will purchase from the Trust, the number of Firm Shares set
forth opposite such Underwriter's name in Schedule 1 hereto, at the purchase
price of $15.00 per Firm Share.
(b) The Trust grants to the Underwriters the Option to
purchase all or any part of the Option Shares for the same consideration per
share as for the Firm Shares. The Option may be exercised only to cover
over-allotments in the sales of the Firm Shares by the Underwriters. The number
of Option Shares (adjusted by the Representatives to eliminate fractions) to be
purchased by each Underwriter will be the same percentage of the aggregate
number of Option Shares being sold as such Underwriter is obligated to purchase
of the Firm Shares. Such Option may be exercised in whole or in part, only to
cover over-allotments, at any time or from time to time on or before the 45th
day after the date of this Underwriting Agreement, upon written or telefacsimile
notice (the "Option Shares Notice") from the Representatives to the Trust no
later than 12:00 noon, New York City time, at least two and not more than five
business days before the date specified for closing in the Option Shares Notice
(the "Option Shares Closing Date"), setting forth the number of Option Shares to
be purchased and the time and date of such purchase. Upon delivery and receipt
of the Option Shares Notice, the Trust will issue and sell to each Underwriter,
and each
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Underwriter will purchase from the Trust, on the Option Shares Closing Date, its
portion of the number of Option Shares set forth in the Option Shares Notice.
(c) The obligations of the Underwriters under this
Underwriting Agreement are several and not joint and are undertaken on the basis
of the representations and are subject to the conditions set forth in this
Underwriting Agreement.
(d) The Investment Adviser agrees to make the payments to the
Underwriters when and as required by Section 2 hereof.
2. Payment and Delivery. Delivery by the Trust of the Firm Shares
(the "Firm Shares Closing") to the Representatives for the accounts of the
Underwriters against payment of the purchase price by wire transfer of Federal
Funds or similar same day funds to the Trust for the Firm Shares, will take
place at the offices of PaineWebber Incorporated (the "Managing
Representative"), 1285 Avenue of the Americas, New York, New York or such other
location as is agreed upon by the parties hereto, or through the facilities of
the Depository Trust Company or another mutually agreeable facility, at 9:00
a.m., New York City time, on the third business day following the date of this
Underwriting Agreement, or at such time on such other date, not later than ten
business days after the date of this Underwriting Agreement, as may be agreed
upon by the Trust and the Managing Representative (the "Firm Shares Closing
Date").
If and to the extent that the Option is exercised, delivery of the
Option Shares and payment by the Underwriters (in the manner specified above)
will take place at the offices or through the facilities specified above for the
Firm Shares Closing at the time and date (which may be the Firm Shares Closing
Date) specified in the Option Shares Notice. Any Option Shares Closing Date may
not be later than three business days following the exercise of the related
Option. The Firm Shares Closing Date and any Option Shares Closing Date are
called the "Closing Dates."
Certificates evidencing Shares of Beneficial Interest will be in
definitive form (or temporary form acceptable to the New York Stock Exchange),
registered in such names and in such denominations as the Managing
Representative requests at least three full business days before the Firm Shares
Closing Date or, in the case of Option Shares, on the day of notice of exercise
of the Option as described in Section 1(b), and will be made available to the
Managing Representative for checking and packaging, at a place in New York City
designated by the Managing Representative, at least one full business day before
the relevant Closing Date.
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Simultaneous with delivery to the Underwriters of and payment by the
Underwriters for (i) Firm Shares on the Firm Shares Closing Date and (ii) Option
Shares on the Option Shares Closing Date, Xxxxx Xxxxx (or an affiliate as
determined by Xxxxx Xxxxx) will pay to the Underwriters an amount equal to 4.50%
of the purchase price per Share for each Share to be purchased by the
Underwriters on such date by wire transfer of Federal Funds or similar same-day
funds on such Firm Shares Closing Date or Option Shares Closing Date, as the
case may be, to the order of the Managing Representative, on behalf of itself
and the Underwriters.
3. Registration Statement and Prospectus; Public Offering. The Trust
has filed with the Securities and Exchange Commission (the "Commission"),
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), the
Investment Company Act of 1940, as amended (the "Investment Company Act"), and
the published rules and regulations adopted by the Commission under the
Securities Act (the "Securities Act Rules") and the Investment Company Act (the
"Investment Company Act Rules"), a Notification of Registration on Form N-8A
(the "Notification") pursuant to Section 8 of the Investment Company Act and a
registration statement on Form N-2 (File Nos. 333-68733 and 811-09151) relating
to the Shares (the "registration statement"), including a preliminary prospectus
(including any preliminary statement of additional information), and such
amendments to such registration statement as may have been required to the date
of this Underwriting Agreement. The preliminary prospectus (including any
preliminary statement of additional information) is to be used in connection
with the offering and sale of the Shares. The term "Preliminary Prospectus" as
used herein means any preliminary prospectus (including any preliminary
statement of additional information) included at any time as a part of the
registration statement and any preliminary prospectus (including any preliminary
statement of additional information) omitted therefrom pursuant to the
Securities Act Rules.
The Trust has furnished the Representatives copies of such
registration statement, each amendment to such registration statement filed by
the Trust with the Commission and the Preliminary Prospectus filed by the Trust
with the Commission or used by the Trust. If the registration statement has not
become effective, a further amendment (the "Final Amendment") to such
registration statement, including the forms of final prospectus (including any
final statement of additional information), necessary to permit such
registration statement to become effective will promptly be filed by the Trust
with the Commission. If such registration statement has become effective and any
prospectus (including any statement of additional information) contained therein
omits certain information at the time of effectiveness pursuant to Rule
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430A of the Securities Act Rules, a final prospectus (the "Rule 430A
Prospectus") containing such omitted information will be filed by the Trust with
the Commission in accordance with Rule 497(h) of the Securities Act Rules. The
registration statement as amended at the time it becomes or became effective
(the "Effective Date"), including financial statements and all exhibits, and any
information deemed to be included by Rule 430A, is called the "Registration
Statement." The term "Prospectus" means the prospectus (including any statement
of additional information) in the form in which it is first filed with the
Commission pursuant to Rule 497(b), (h) or (j) of the Securities Act Rules, as
the case may be.
The Trust and the Investment Adviser understand that the
Underwriters propose to make a public offering of the Firm Shares, as described
in the Prospectus, as soon after the Effective Date (or, if later, after the
date this Underwriting Agreement is signed) as the Managing Representative deems
advisable. The Trust confirms that the Underwriters and dealers have been
authorized to distribute the Preliminary Prospectus relating to the Shares
included in the initial filing of the registration statement and are authorized
to distribute the Prospectus and any amendments or supplements thereto.
4. Representations.
(a) Each of the Trust and the Investment Adviser jointly and
severally represents to each Underwriter as follows:
(i) 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) of the Securities Act Rules, 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 Securities Act, the Investment Company Act, the
Securities Act Rules and the Investment Company Act Rules, as the case may
be. On the Effective Date and on the date that any post-
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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 4(a)(i) do not apply to statements or
omissions relating to the Underwriters made in reliance on and in
conformity with information furnished in writing to the Trust by the
Representatives expressly for use in the Registration Statement, the
Prospectus, or any amendments or supplements thereto, as described in
Section 7(f) hereof.
(ii) The Trust has been duly formed, is validly existing
as a business trust under the laws of the Commonwealth of Massachusetts,
with full power and authority to conduct all the activities conducted by
it, to own or lease all assets owned or leased by it and to conduct its
business as described in the Registration Statement and Prospectus, and
the Trust is duly licensed and qualified to do business and in good
standing in each jurisdiction in which its ownership or leasing of
property or its conducting of business requires such qualification, except
where the failure to be so qualified or be in good standing would not have
a material adverse effect on the Trust, and the Trust owns, possesses or
has obtained and currently maintains all governmental licenses, permits,
consents, orders, approvals and other authorizations, whether foreign or
domestic, necessary to carry on its business as contemplated in the
Prospectus. The Trust has no subsidiaries.
(iii) The capitalization of the Trust is as set forth in
the Registration Statement and the Prospectus. The Shares of Benefi-
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cial Interest of the Trust conform in all material respects to the
description of them in the Prospectus. All the outstanding Shares of
Beneficial Interest have been duly authorized and are validly issued,
fully paid and nonassessable (except as described in the Registration
Statement). The Shares to be issued and delivered to and paid for by the
Underwriters in accordance with this Underwriting Agreement against
payment therefor as provided by this Underwriting Agreement have been duly
authorized and when issued and delivered to the Underwriters will have
been validly issued and will be fully paid and nonassessable (except as
described in the Registration Statement). No person is entitled to any
preemptive or other similar rights with respect to the Shares.
(iv) The Trust is duly registered with the Commission
under the Investment Company Act as a non-diversified, closed-end
management investment company, and, subject to the filing of the Final
Amendment, if not already filed, all action under the Securities Act, the
Investment Company Act, the Securities Act Rules and the Investment
Company Act Rules, as the case may be, necessary to make the public
offering and consummate the sale of the Shares as provided in this
Underwriting Agreement has or will have been taken by the Trust.
(v) The Trust has full power and authority to enter into
each of this Underwriting Agreement, the Investment Advisory Agreement,
the Custody Agreement and the Transfer Agency Agreement (collectively,
the "Trust Agreements") and to perform all of the terms and provisions
hereof and thereof to be carried out by it and (A) each Trust Agreement
has been duly and validly authorized, executed and delivered by or on
behalf of the Trust, (B) each Trust Agreement does not violate in any
material respect any of the applicable provisions of the Investment
Company Act, the Investment Advisers Act of 1940 (the "Advisers Act"),
the Investment Company Act Rules and the rules and regulations adopted by
the Commission under the Advisers Act (the "Advisers Act Rules"), as the
case may be, and (C) assuming due authorization, execution and delivery
by the other parties thereto, each Trust Agreement constitutes the legal,
valid and binding obligation of the Trust enforceable in accordance with
its terms, (1) subject, as to enforcement, to applicable bankruptcy,
insolvency and similar
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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 (2) except as rights to indemnity thereunder may be
limited by federal or state securities laws.
(vi) None of (A) the execution and delivery by the Trust
of the Trust Agreements, (B) the issue and sale by the Trust of the
Shares as contemplated by this Underwriting Agreement and (C) the
performance by the Trust of its obligations under any of the Trust
Agreements or consummation by the Trust of the other transactions
contemplated by the Trust Agreements conflicts with or will conflict
with, or results or will result in a breach of, the Declaration of Trust
or the By-laws of the Trust or any agreement or instrument to which the
Trust is a party or by which the Trust is bound, or any law, rule or
regulation, or order of any court, governmental instrumentality,
securities exchange or association or arbitrator, whether foreign or
domestic, applicable to the Trust, other than state securities or "blue
sky" laws applicable in connection with the purchase and distribution of
the Shares by the Underwriters pursuant to this Underwriting Agreement.
(vii) The Trust is not currently in breach of, or in
default under, any written agreement or instrument to which it is a party
or by which it or its property is bound or affected.
(viii) No person has any right to the registration of
any securities of the Trust because of the filing of the registration
statement.
(ix) 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 by the Trust for
the consummation by the Trust of the transactions to be performed by the
Trust or the performance by the Trust of all the terms and provisions to
be performed by or on behalf of it in each case as contemplated in the
Trust Agreements, except such as (A) have been obtained under the
Securities Act, the Investment Company Act, the Advisers Act, the
Securities Act Rules, the Investment Company Act Rules, and the Advisers
Act Rules, and (B) may be required by the New York Stock Exchange or
under state securities or "blue sky" laws, in con-
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nection with the purchase and distribution of the Shares by the
Underwriters pursuant to this Underwriting Agreement.
(x) The Shares are duly authorized for listing, subject
to official notice of issuance, on the American Stock Exchange and the
Trust's Registration Statement on Form 8-A, under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), has become effective.
(xi) Deloitte & Touche LLP, whose report appears in the
Prospectus, are independent public accountants with respect to the Trust
as required by the Securities Act, the Investment Company Act, the
Securities Act Rules and the Investment Company Act Rules.
(xii) The statement of assets and liabilities included
in the Registration Statement and the Prospectus presents fairly in all
material respects, in accordance with generally accepted accounting
principles in the United States applied on a consistent basis, the
financial position of the Trust as of the date indicated.
(xiii) The Trust will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management's general or
specific authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(C) access to assets is permitted only in accordance with management's
general or specific authorization; and (D) 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.
(xiv) Since the date as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, business affairs or business of the Trust,
whether or not arising in the ordinary course of business, (B) there have
been no transactions entered into by the Trust other than those in the
ordinary course of its business and (C) there has been no
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dividend or distribution of any kind declared, paid or made on any class
of its capital shares.
(xv) There is no action, suit or proceeding before or by
any court, commission, regulatory body, administrative agency or other
governmental agency or body, foreign or domestic, now pending, or, to the
knowledge of the Trust, threatened against or affecting the Trust, which
(A) might result in any material adverse change in the condition,
financial or otherwise, business affairs or business prospects of the
Trust or might materially adversely affect the properties or assets of
the Trust or (B) 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.
(xvi) Except for stabilization transactions conducted by
the Underwriters, and except for tender offers, Share repurchases and the
issuance or purchase of Shares pursuant to the Trust's dividend
reinvestment plan ("DRP") effected following the date on which the
distribution of the Shares is completed in accordance with the policies
of the Trust as set forth in the Prospectus, the Trust has not taken and
will not take, directly or indirectly, any action designed or which might
be reasonably expected to cause or result in, or which will constitute,
stabilization or manipulation of the price of the Shares of Beneficial
Interest in violation of applicable federal securities laws.
(xvii) The Trust intends to direct the investment of the
proceeds of the offering of the Shares in such a manner as to comply with
the requirements of Subchapter M of the Internal Revenue Code of 1986, as
amended (the "Code").
(xviii) To the knowledge of the Trust after due inquiry,
no advertising, sales literature or other promotional materials
(excluding road show slides or road show tapes) were authorized or
prepared by or on behalf of the Trust and 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 and
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the broker selling memo which were filed with the NASD on December 15,
1998, a draft prospecting letter which was filed with the NASD on December
21, 1998 and a draft of a prospecting letter made available on an Internet
web site maintained by the Investment Adviser (collectively, 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 Securities Act, the Securities Act Rules and the rules
and interpretations of the NASD; and no broker kits, road show slides,
road show tapes or sales materials authorized or prepared by the Trust or
authorized or prepared on behalf of the Trust by the Investment Adviser or
any representative thereof for use in connection with the public offering
or sale of the Shares contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading.
(b) The Investment Adviser represents to each Underwriter as follows:
(i) The Investment Adviser has been duly formed, is validly
existing as a business trust under the laws of the Commonwealth of
Massachusetts with full power and authority to conduct all of the
activities conducted by it, to own or lease all of the assets owned or
leased by it and to conduct its business as described in the Registration
Statement and Prospectus, 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, except to the extent that failure
to be so qualified or be in good standing would not have a material
adverse affect on the Investment Adviser; 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 carry on its business as
contemplated in the Registration Statement and the Prospectus.
(ii) The Investment Adviser is (A) duly registered as an
investment adviser under the Advisers Act and (B) not prohibited by the
Advisers Act, the Investment Company Act, the Advisers Act Rules or the
Investment Company Act Rules from acting as the in-
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vestment adviser for the Trust as contemplated by the Investment Advisory
Agreement, the Registration Statement and the Prospectus.
(iii) The Investment Adviser has full power and authority
to enter into each of this Underwriting Agreement, the Investment Advisory
Agreement, the Administration Agreement and the Shareholder Services
Agreement dated as of January 29, 1999 (the "Shareholder Services
Agreement") between the Investment Adviser and PaineWebber Incorporated
(collectively, this Underwriting Agreement, the Investment Advisory
Agreement, the Administration Agreement and the Shareholder Services
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 in any material respect any of the
applicable provisions of the Investment Company Act, the Advisers Act, the
Investment Company Act Rules and the Advisers Act Rules; 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, (1) 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 (2) except as rights to indemnity
thereunder may be limited by federal or state securities laws.
(iv) Neither (A) the execution and delivery by the
Investment Adviser of any Investment Adviser Agreement by the Investment
Adviser nor (B) 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 Agreement and Declaration of
Trust or By-Laws 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
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exchange or association or arbitrator, whether foreign or domestic,
applicable to the Investment Adviser.
(v) No consent, approval, authorization or order of any
court, governmental agency or body or securities exchange or association,
whether foreign or domestic, is required 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 (A) have been obtained under the Investment Company
Act, the Advisers Act, the Securities Act, the Investment Company Act
Rules, the Advisers Act Rules and the Securities Act Rules, and (B) 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.
(vi) The description of the Investment Adviser and its
business, and the statements attributable to the Investment Adviser, in
the Registration Statement and the Prospectus complies with the
requirements of the Securities Act, the Investment Company Act, the
Securities Act Rules and the Investment Company Act Rules 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.
(vii) 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 or that might reasonably be expected
to result in any material adverse change in the condition, financial or
otherwise, business affairs or business prospects of the Investment
Adviser or the ability of the Investment Adviser to fulfill its respective
obligations under any Investment Adviser Agreement.
(viii) Except for stabilization activities conducted by
the Underwriters and except for tender offers, Share repurchases and
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the issuance or purchase of Shares pursuant to the Trust's DRP effected
following the date on which the distribution of the Shares is completed in
accordance with the policies of the Trust as set forth in the Prospectus,
the Investment Adviser has not taken and will not take, directly or
indirectly, any action designed, or which might reasonably be expected to
cause or result in, or which will constitute, stabilization or
manipulation of the price of the Shares of Beneficial Interest in
violation of applicable federal securities laws.
(ix) In the event that the Trust or the Investment
Adviser makes available any promotional materials (other than the sales
materials) intended for use only by qualified broker-dealers and
registered representatives thereof by means of an Internet web site or
similar electronic means, the Investment Adviser will install and maintain
pre-qualification and password-protection or similar procedures which will
effectively prohibit access to such promotional materials by persons other
than qualified broker-dealers and registered representatives thereof.
5. Agreements of the Parties.
(a) If the registration statement relating to the Shares has
not yet become effective, the Trust will promptly file the Final Amendment, if
not previously filed, with the Commission, and will use its best efforts to
cause such registration statement to become effective and, as soon as the Trust
is advised, will advise the Representative when the Registration Statement or
any amendment thereto has become effective. If the Registration Statement has
become effective and the Prospectus contained therein omits certain information
at the time of effectiveness pursuant to Rule 430A of the Securities Act Rules,
the Trust will file a 430A Prospectus pursuant to Rule 497(h) of the Securities
Act Rules as promptly as practicable, but no later than the second business day
following the earlier of the date of the determination of the offering price of
the Shares or the date the Prospectus is first used after the Effective Date. If
the Registration Statement has become effective and the Prospectus contained
therein does not so omit such information, the Trust will file a Prospectus
pursuant to Rule 497(b) or (j) of the Securities Act Rules as promptly as
practicable, but no later than the fifth business day following the date of the
later of the Effective Date or the commencement of the public offering of the
Shares after the Effective Date. In either case, the Trust will provide the
Representatives satisfactory evidence of the filing. The Trust will not file
with the Commission any Prospectus or any other amendment (except any
post-effective amendment which is filed with the Commission
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after the later of (x) one year from the date of this Underwriting Agreement or
(y) the date on which distribution of the Shares is completed) or supplement to
the Registration Statement or the Prospectus unless a copy has first been
submitted to the Managing Representative a reasonable time before its filing and
the Managing Representative has not objected to it in writing within a
reasonable time after receiving the copy.
(b) For the period of three years from the date hereof, the
Trust will advise the Representatives promptly (1) of the issuance by the
Commission of any order in respect of the Trust or the Investment Adviser which
relates to the Trust, or which relates to any material arrangements or proposed
material arrangements involving the Trust or the Investment Adviser, (2) of the
initiation or threatening of any proceedings for, or receipt by the Trust of any
notice with respect to, the suspension of the qualification of the Shares for
sale in any jurisdiction or the issuance of any order by the Commission
suspending the effectiveness of the Registration Statement, (3) of receipt by
the Trust, or any representative or attorney of the Trust, of any other
communication from the Commission relating in any material way to the Trust, 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 Trust, which relates in any material way to the Trust or
any material arrangements or proposed material arrangements involving the Trust.
The Trust will make every reasonable effort to prevent the issuance of any order
suspending the effectiveness of the Registration Statement and, if any such
order is issued, to obtain its lifting as soon as possible.
(c) If not delivered prior to the date of this Underwriting
Agreement, the Trust will deliver to the Representatives, without charge, a
signed copy of the registration statement and the Notification and of any
amendments (except any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of this Underwriting
Agreement or (y) the date on which the distribution of the Shares is completed)
to either the Registration Statement or the Notification (including all exhibits
filed with any such document) and as many conformed copies of the registration
statement and any amendments thereto (except any post-effective amendment which
is filed with the Commission after the later of (x) one year from the date of
this Underwriting Agreement or (y) the date on which the distribution of the
Shares is completed) (excluding exhibits) as the Representatives may reasonably
request.
16
(d) During such period as a prospectus is required by law to
be delivered by an underwriter or a dealer, the Trust will deliver, without
charge, to the Representatives, the Underwriters and any dealers, at such office
or offices as the Representatives may designate, as many copies of the
Prospectus as the Representatives 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 Securities
Act, the Investment Company Act, the Securities Act Rules or the Investment
Company Act Rules, the Trust promptly will prepare, submit to the Managing
Representative, file with the Commission and deliver, without charge, to the
Underwriters and to dealers (whose names and addresses the Representatives will
furnish to the Trust) to whom Shares may have been sold by the Underwriters, and
to other dealers on request, amendments or supplements to the Prospectus so that
the statements in such Prospectus, as so amended or supplemented, will not, in
light of the circumstances existing when such Prospectus is delivered to a
purchaser, be misleading in any material respect and will comply with the
Securities Act, the Investment Company Act, the Securities Act Rules and the
Investment Company Act Rules. Delivery by the Underwriters of any such
amendments or supplements to the Prospectus will not constitute a waiver of any
of the conditions in Section 6 hereof.
(e) The Trust will make generally available to holders of the
Trust's securities, as soon as practicable but in no event later than the last
day of the 18th full calendar month following the calendar quarter in which the
Effective Date falls, an earnings statement, if applicable, satisfying the
provisions of Section 11(a) of the Securities Act and, at the option of the
Trust, Rule 158 of the Securities Act Rules.
(f) The Trust will take such actions as the Representatives
reasonably request in order to qualify the Shares for offer and sale under the
securities or "blue sky" laws of such jurisdictions as the Representatives
reasonably designate; provided that the Trust shall not be required in
connection therewith or as a condition thereof to qualify as a foreign
corporation or to execute a general consent to service of process in any
jurisdiction.
(g) If the transactions contemplated by this Underwriting
Agreement are consummated, the Trust shall pay all costs and expenses incident
to
17
the performance of the obligations of the Trust under this Underwriting
Agreement (to the extent such expenses do not, in the aggregate, exceed $0.03
per Share), including but not limited to costs and expenses of or relating to
(1) the preparation, printing and filing of the registration statement and
exhibits to it, each Preliminary Prospectus, the Prospectus and all amendments
and supplements thereto, (2) the issuance of the Shares and the preparation and
delivery of certificates for the Shares, (3) the registration or qualification
of the Shares for offer and sale under the securities or "blue sky" laws of the
jurisdictions referred to in the foregoing paragraph, including the fees and
disbursements of counsel for the Underwriters in that connection, and the
preparation and printing of 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 National
Association of Securities Dealers, Inc., 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, (8) the transfer
agent for the Shares, and (9) in addition to the foregoing, an aggregate
reimbursement of up to [ ] as partial reimbursement of the costs and expenses of
the Underwriters. To the extent the foregoing costs and expenses incident to the
performance of the obligations of the Trust under this Underwriting Agreement
exceed, in the aggregate, $0.03 per Share, Xxxxx Xxxxx 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 (1) if this
Underwriting Agreement is terminated by (x) the Trust or the Investment Adviser
pursuant to any of the provisions hereof (otherwise than pursuant to Section 8
hereof) or (y) by the Representatives or the Underwriters because of any
inability, failure or refusal on the part of the Trust or the Investment Adviser
to comply with any material terms or because any of the conditions in Section 6
are not satisfied, Xxxxx Xxxxx or an affiliate and the Trust, jointly and
severally, will reimburse the Underwriters for all out-of-pocket expenses
(including the reasonable fees, disbursements and other charges of their
counsel) reasonably incurred by them in connection with the proposed purchase
and sale of the Shares and (2) 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 obli-
18
gations pursuant to this Underwriting Agreement, will be relieved of liability
to the Trust and the Investment Adviser and the other Underwriters for damages
occasioned by its default.
(i) Without the prior written consent of the Representatives,
the Trust will not offer, sell or register with the Commission, or announce an
offering of, any equity securities of the Trust, within 180 days after the
Effective Date, except for the Shares as described in the Prospectus and any
issuances of Shares of Beneficial Interest pursuant to the dividend reinvestment
plan established by the Trust and except in connection with any offering of
preferred shares of beneficial interest as contemplated by the Prospectus.
(j) The Trust will use its best efforts to list the Shares on
the New York Stock Exchange and comply with the rules and regulations of such
exchange.
(k) The Trust will direct the investment of the net proceeds
of the offering of the Shares in such a manner as to comply with the investment
objective and policies of the Trust as described in the Prospectus.
6. Conditions of the Underwriters' Obligations. The obligations of
the Underwriters to purchase the Shares are subject to the accuracy on the date
of this Underwriting Agreement, and on the Closing Dates, of the representations
of the Trust and the Investment Adviser in this Underwriting Agreement, to the
accuracy and completeness of all statements made by the Trust or the Investment
Adviser or any of their respective officers in any certificate delivered to the
Representatives or their counsel pursuant to this Underwriting Agreement, to
performance by the Trust and the Investment Adviser of their respective
obligations under this Underwriting Agreement and to each of the following
additional conditions:
(a) The registration statement must have become effective by
5:30 p.m., New York City time, on the date of this Underwriting Agreement or
such later date and time as the Managing Representative consents to in writing.
The Prospectus must have been filed in accordance with Rule 497(b), (h) or (j),
as the case may be, of the Securities Act Rules.
(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
Commis-
19
sion, 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, (1) there must not have been any
material change in the Shares of Beneficial Interest or liabilities of the Trust
except as set forth in or contemplated by the Prospectus; (2) there must not
have been any material adverse change in the general affairs, prospects,
management, business, financial condition or results of operations of the Trust
or the Investment Adviser whether or not arising from transactions in the
ordinary course of business as set forth in or contemplated by the Prospectus;
(3) the Trust must not have sustained any material loss or interference with its
business from any court or from legislative or other governmental action, order
or decree, whether foreign or domestic, or from any other occurrence not
described in the Registration Statement and Prospectus; and (4) 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 (1),
(2), (3) or (4) 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 Representatives must have received on each Closing
Date a certificate, dated such date, of the President or a Vice-President and
the chief financial or accounting officer of each of the Trust and the
Investment Adviser certifying that (1) the signers have carefully examined the
Registration Statement, the Prospectus, and this Underwriting Agreement, (2) the
representations of the Trust (with respect to the certificates from such Trust
officers) and the representations of the Investment Adviser (with respect to the
certificates from such officers of the Investment Adviser) in this Underwriting
Agreement are accurate on and as of the date of the certificate, (3) there has
not been any material adverse change in the general affairs, prospects,
management, business, financial condition or results of operations of the Trust
(with respect to the certificates from such Trust officers) or the Investment
Adviser (with respect to the certificates from such officers of the Investment
Adviser), which change would materially and adversely affect the ability of the
Trust or the In-
20
vestment 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, (4) with respect
to the Trust only, to the knowledge of such officers after reasonable
investigation, no order suspending the effectiveness of the Registration
Statement, prohibiting the sale of any of the Shares or otherwise having a
material adverse effect on the Trust 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, (5) to the knowledge of the
officers of the Investment Adviser, after reasonable investigation, no order
having a material adverse effect on the ability of the Investment Adviser to
fulfill its obligations under this Underwriting Agreement or the Investment
Advisory 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 (6) each of the Trust (with
respect to the certificates from such Trust officers) and the Investment Adviser
(with respect to the certificates from such officers of the Investment Adviser)
has performed all of its respective agreements that this Underwriting Agreement
requires it to perform by such Closing Date (to the extent not waived in writing
by the Managing Representative).
(e) The Representatives must receive on each Closing Date the
opinions dated such Closing Date substantially in the form of Annexes A, B and C
to this Underwriting Agreement from the counsel identified in each such Annex.
(f) The Representatives must receive on each Closing Date from
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP and its affiliated entities, its
counsel, an opinion dated such Closing Date with respect to the Trust, the
Shares, the Registration Statement and the Prospectus, this Underwriting
Agreement and the form and sufficiency of all proceedings taken in connection
with the sale and delivery of the Shares. Such opinion and proceedings shall
fulfill the requirements of this Section 6(f) only if such opinion and
proceedings are satisfactory in all respects to the Representatives. The Trust
and the Investment Adviser must have furnished to such counsel such documents as
counsel may reasonably request for the purpose of enabling them to render such
opinion.
(g) The Representatives must receive on the date this
Underwriting Agreement is signed and delivered by the Representatives a signed
letter, dated such date, substantially in the form of Annex D to this
Underwriting Agreement from the firm of accountants designated in such Annex.
The Representatives also must receive on each Closing Date a signed letter from
such accountants, dated as of
21
such Closing Date, confirming on the basis of a review in accordance with the
procedures set forth in their earlier letter that nothing has come to their
attention during the period from a date not more than five business days before
the date of this Underwriting Agreement, specified in the letter, to a date not
more than five business days before such Closing Date, that would require any
change in their letter referred to in the foregoing sentence.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Underwriting Agreement will comply only if they are
in form and scope reasonably satisfactory to counsel for the Underwriters,
provided that any such documents, forms of which are annexed hereto, shall be
deemed satisfactory to such counsel if substantially in such form.
7. Indemnification and Contribution.
22
23
(a) Each of the Trust and the Investment Adviser, jointly and
severally, will indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of such Underwriter and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act from and against any and all losses, claims,
liabilities, expenses and damages (including, but not limited to, any and all
investigative, legal and other expenses reasonably incurred in connection with,
and any and all amounts paid in settlement of, any action, suit or proceeding
between any of the indemnified parties and any indemnifying parties or between
any indemnified party and any third party, or otherwise, or any claim asserted),
to which such Underwriter or any such person, or any of them, may become subject
under the Securities Act, the Exchange Act, the Investment Company Act, the
Advisers Act or other federal or state statutory law or regulation, at common
law or otherwise, whether foreign or domestic, insofar as such losses, claims,
liabilities, expenses or damages arise out of or are based on (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Preliminary Prospectus, the Prospectus, the sales
materials, or any amendment or supplement to the Registration Statement, the
Preliminary Prospectus, the Prospectus, the sales materials or in any documents
filed under the Exchange Act and deemed to be incorporated by reference into the
Registration Statement, the Preliminary Prospectus, the Prospectus, or in any
application or other document executed by or on behalf of the Trust or based on
written information furnished by or on behalf of the Trust filed in any
jurisdiction in order to qualify the Shares under the securities laws thereof or
filed with the Commission, (ii) the omission or alleged omission to state, in
any or all such documents, a material fact required to be stated therein or
necessary to make the statements therein not misleading or (iii) any act or
failure to act or any alleged act or failure to act by such Underwriter in
connection with, or relating in any manner to, the Shares or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, liability, expense or damage arising out of or based upon matters
covered by clause (i) or (ii) above (provided, however, that neither the Trust
nor the Investment Adviser shall be liable under this clause (iii) to the extent
it is finally judicially determined by a court of competent jurisdiction that
such loss, claim, liability, expense or damage resulted directly from any such
acts or failures to act undertaken or omitted to be taken by such Underwriter
through its gross negligence, bad faith or willful misconduct); provided that
neither the Trust nor the Investment Adviser will be liable to the extent that
such losses, claims, liabilities, expenses or damages are based on an untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information relating to any underwriter furnished in
writing to the Trust by the Representative on behalf of Underwriters expressly
for inclusion in the Regis-
24
tration Statement, the Preliminary Prospectus or the Prospectus. This indemnity
agreement will be in addition to any liability that the Trust or the Investment
Adviser might otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Trust
and the Investment Adviser, each person, if any, who controls the Trust or the
Investment Adviser within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, each trustee of the Trust and each officer of
the Trust who signs the Registration Statement to the same extent as the
foregoing indemnity from the Trust or the Investment Adviser to the Underwriter,
but only insofar as losses, claims, liabilities, expenses or damages arise out
of or are based on any untrue statement or omission or alleged untrue statement
or omission made in reliance on and in conformity with information relating to
such Underwriter furnished in writing to the Trust by such Underwriter expressly
for use in the Registration Statement, the Preliminary Prospectus or Prospectus.
This indemnity will be in addition to any liability that such Underwriter might
otherwise have; provided, however, that in no case shall such Underwriter be
liable or responsible for any amount in excess of the fees and commissions
received by the Underwriter.
(c) Any party that proposes to assert the right to be indemnified
under this Section 7 will, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 7, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission to so notify such indemnifying party will not
relieve it from any liability that it may have to any indemnified party under
the foregoing provision of this Section 7 unless, and only to the extent that,
such omission results in the forfeiture of substantive rights or defenses by the
indemnifying party. If any such action is brought against any indemnified party
and it notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects by
delivering written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel reasonably satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the
25
fees, disbursements and other charges of such counsel will be at the expense of
such indemnified party unless (1) the employment of counsel by the indemnified
party has been authorized in writing by the indemnifying party, (2) the
indemnified party has reasonably concluded (based on the advice of counsel) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party
(3) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. Subject to the requirements of
Investment Company Act Release No. 11330, all such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are
incurred. It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm admitted to practice in such jurisdiction at any one time for
all such indemnified party or parties. An indemnifying party will not be liable
for any settlement of any action or claim effected without its written consent
(which consent will not be unreasonably withheld). No indemnifying party shall,
without the prior written consent of each indemnified party, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding relating to the matters contemplated by this Section
7 (whether or not any indemnified party is a party thereto), unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising or that may arise out of such
claim, action or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7 is
applicable but for any reason is held to be unavailable from the Trust, the
Investment Adviser or the Underwriters, the Trust, the Investment Adviser and
the Underwriters will contribute to the total losses, claims, liabilities,
expenses and damages (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted, but after deducting any
contribution received by the Trust and the Investment Adviser from persons other
than the Underwriter, such as persons who control the Trust or the Investment
Adviser within the meaning of the Securities Act or the Exchange Act,
26
officers of the Trust who signed the Registration Statement and directors of the
Trust, who may also be liable for contribution) to which the Trust, the
Investment Adviser and the Underwriters may be subject in such proportion as
shall be appropriate to reflect the relative benefits received by the Trust and
the Investment Adviser on the one hand and the Underwriters on the other. The
relative benefits received by the Trust and the Investment Adviser (treated
jointly for this purpose as one person) on the one hand and the Underwriters on
the other hand shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Trust
bear to the total fees and commissions received by the Underwriters. If, but
only if, the allocation provided by the foregoing sentence is not permitted by
applicable law, the allocation of contribution shall be made in such proportion
as is appropriate to reflect not only such relative benefits referred to in the
foregoing sentence but also the relative fault of the Trust and the Investment
Adviser (treated jointly for this purpose as one person) on the one hand and the
Underwriters on the other hand in connection with respect to the statements or
omissions or alleged statements or omissions that resulted in the losses,
claims, liabilities, expenses or damages (including any investigative, legal or
other expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted), as well as
any other relevant equitable considerations appropriate in the circumstances.
Such relative fault of the parties shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Trust, the Investment Adviser or the Underwriters, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission and any other equitable considerations
appropriate in the circumstances. The Trust, the Investment Adviser and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 7(d) were to be determined by pro rata allocation or by
any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, liability, expense or damage, or action in
respect thereof, referred to above in this Section 7(d) shall be deemed to
include, for purposes of this Section 7(d) any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding any other provisions of
this Section 7(d), the Underwriters shall not be required to contribute any
amount in excess of the fees and commissions received by them and no person
found guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7(d), any person who controls a party to
27
this Agreement within the meaning of the Securities Act will have the same
rights to contribution as that party, and each trustee of the Trust and each
officer of the Trust who signed the Registration Statement will have the same
rights to contribution as the Trust, subject in each case to the provisions
hereof. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action against such party in respect of which a
claim for contribution may be made under this Section 7(d), notify such party or
parties from whom contribution may be sought, but the omission so to notify will
not relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have under this Section 7(d). No party will be
liable for contribution with respect to any action or claim settled without its
written consent (which consent shall not be unreasonably withheld). The
Underwriters' obligations to contribute pursuant to this Section 7 are several
in proportion to the respective number of Firm Shares set forth opposite their
names in Schedule 1 (or such number of Firm Shares as determined pursuant to
Section 9 hereof) and not joint.
(e) Notwithstanding any other provisions in this Section 7, no
party shall be entitled to indemnification or contribution under this Agreement
against any loss, claim, liability, expense or damage arising by reason of such
person's willful misfeasance, bad faith or gross negligence in the performance
of its duties hereunder, or by reason of such person's reckless disregard of
such person's obligations and duties hereunder.
(f) The Trust and the Investment Adviser 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 and to
selling concessions and reallowances of selling concessions under the caption
"Underwriting" in the Prospectus constitute the only information furnished in
writing to the Trust by the Representatives 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.
8. Termination. This Underwriting Agreement may be terminated by
the Managing Representative by notifying the Trust at any time:
(a) before the later of the effectiveness of the Registration
Statement and the time when any of the Shares are first generally offered
pursuant to
28
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 trading in the equity securities of the
Trust is suspended by the Commission or by the principal exchange that lists the
Shares, 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, or, 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, a general banking moratorium has been established by U.S. federal or
New York authorities or 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 judgement 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.
9. Substitution of Underwriters. If one or more of the Underwriters
fails (other than for a reason sufficient to justify the termination of this
Underwriting Agreement) to purchase on any Closing Date the Shares agreed to be
purchased on such Closing Date by such Underwriter or Underwriters, the Managing
Representative may find one or more substitute underwriters to purchase such
Shares or make such other arrangements as the Managing Representative deems
advisable, or one or more of the remaining Underwriters may agree to purchase
such Shares in such proportions as may be approved by the Managing
Representative, in each case upon the terms set forth in this Underwriting
Agreement. If no such arrangements have been made within 36 hours after such
Closing Date, and
(a) the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date does not exceed 10% of the Shares that the
Underwriters are obligated to purchase on such Closing Date, each of the
nondefaulting
29
Underwriters will be obligated to purchase such Shares on the terms set forth in
this Underwriting Agreement in proportion to their respective obligations under
this Underwriting Agreement, or
(b) the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date exceeds 10% of the Shares to be purchased by
all the Underwriters on such Closing Date, the Trust will be entitled to an
additional period of 24 hours within which to find one or more substitute
underwriters reasonably satisfactory to the Managing Representative to purchase
such Shares on the terms set forth in this Underwriting Agreement.
In any such case, either the Managing Representative or the Trust
will have the right to postpone the applicable Closing Date for not more than
five business days in order that necessary changes and arrangements (including
any necessary amendments or supplements to the Registration Statement or the
Prospectus) may be effected by the Managing Representative and the Trust. If the
number of Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters exceeds 10% of the Shares that the Underwriters are
obligated to purchase on such Closing Date, and none of the nondefaulting
Underwriters or the Trust makes arrangements pursuant to this Section within the
period stated for the purchase of the Shares that the defaulting Underwriters
agreed to purchase, this Underwriting Agreement will terminate without liability
on the part of any nondefaulting Underwriter, the Trust or the Investment
Adviser, except as provided in Sections 5(g) and 7 hereof. This Section will not
affect the liability of any defaulting Underwriter to the Trust or the
nondefaulting Underwriters arising out of such default. A substitute underwriter
will become a Underwriter for all purposes of this Underwriting Agreement.
10. Miscellaneous.
(a) The reimbursement, indemnification and contribution
agreements in Sections 5(g) and 7 hereof and the representations of the Trust,
the Investment Adviser and the Underwriters in this Underwriting Agreement will
remain in full force and effect regardless of any termination of this
Underwriting Agreement. The reimbursement, indemnification and contribution
agreements in Sections 5(g) and 7 hereof and the representations and agreements
of the Trust, the Investment Adviser and the Underwriters in this Underwriting
Agreement shall survive the Closing Dates and shall remain in full force and
effect regardless of any investigation made by or on behalf of any Underwriter,
the Trust, the Investment Adviser or any controlling person and delivery of and
payment for the Shares.
30
(b) This Underwriting Agreement is for the benefit of the
Underwriters, the Trust, the Investment Adviser and their successors and
assigns, and, to the extent expressed in this Underwriting Agreement, for the
benefit of persons controlling any of the Underwriters, the Trust, the
Investment Adviser and directors and officers of the Trust and the Investment
Adviser, and their respective successors and assigns, and no other person,
partnership, association or corporation will acquire or have any right under or
by virtue of this Underwriting Agreement. The term "successors and assigns" does
not include any purchaser of the Shares from any Underwriter merely because of
such purchase.
(c) All notices and communications under this Underwriting
Agreement will be in writing, effective only on receipt and mailed or delivered,
by messenger, facsimile transmission or otherwise, to the Representatives in
care of PaineWebber Incorporated, Attn: Financial Institutions Group, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, to the Trust or the Investment
Adviser at 00 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000, Attn: Chief Legal Officer.
(d) This Underwriting Agreement may be signed in multiple
counterparts that taken as a whole constitute one agreement.
(e) This Underwriting Agreement will be governed by and
construed in accordance with the laws of the State of New York without reference
to choice of law principles thereof.
(f) A copy of the Agreement and Declaration of Trust of each
of the Trust and the Investment Adviser is on file with the Secretary of The
Commonwealth of Massachusetts, and notice hereby is given that this Underwriting
Agreement is executed on behalf of the respective Trustees of the Trust and the
Investment Adviser 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 respective
assets and properties of the Trust and the Investment Adviser.
31
Please confirm that the foregoing correctly sets forth the
agreement between us.
Very truly yours,
Xxxxx Xxxxx Pennsylvania Municipal Income Trust
By:_______________________________
Name:
Title:
Xxxxx Xxxxx Management
By:_______________________________
Name:
Title:
Confirmed:
PaineWebber Incorporated
X.X. Xxxxxxx & Sons, Inc.
Prudential Securities Incorporated
Xxxxxxx Xxxxx Barney Inc.
Xxxxxxxxxx & Co. Inc.
Xxxxxx Xxxxxxxxxx Xxxxx Inc.
As Representatives of the Underwriters
c/o PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
By: PaineWebber Incorporated
By:_____________________________
Name:
Title:
Acting on behalf of itself
and the Underwriters
named in Schedule 1
32
SCHEDULE 1
NAME NUMBER OF FIRM SHARES
TO BE PURCHASED
PaineWebber Incorporated [_____________]
X.X. Xxxxxxx & Sons, Inc. [_____________]
Prudential Securities Incorporated [_____________]
Xxxxxxx Xxxxx Xxxxxx Inc. [_____________]
Xxxxxxxxxx & Co. Inc. [_____________]
Xxxxxx Xxxxxxxxxx Xxxxx Inc. [_____________]
33
Total Underwriters
34
ANNEX A
FORM OF OPINION OF
XXXXXXXXXXX & XXXXXXXX LLC REGARDING THE TRUST
1. The Registration Statement and all post-effective amendments, if
any, are effective under the Securities Act and no stop order with respect
thereto has been issued and no proceeding for that purpose has been instituted
or, to the best of our knowledge, is threatened by the Commission. Any filing of
the Prospectus or any supplements thereto required under Rule 497 of the
Securities Act Rules prior to the date hereof have been made in the manner and
within the time required by such rule.
2. The Trust has been duly formed and is validly existing as a
Massachusetts business trust under the laws of the Commonwealth of
Massachusetts, with full power and authority to conduct all the activities
conducted by it, to own or lease all assets owned (or to be owned) or leased (or
to be leased) by it and to conduct its business as described in the Registration
Statement and Prospectus, and the Trust is duly licensed and qualified to do
business and in good standing in each jurisdiction in which its ownership or
leasing of property or its conducting of business requires such qualification,
and the Trust owns, possesses or has obtained and currently maintains all
governmental licenses, permits, consents, orders, approvals and other
authorizations, whether foreign or domestic, necessary to carry on its business
as contemplated in the Prospectus. The Trust has no subsidiaries.
3. The capitalization of the Trust is as set forth in the
Registration Statement and the Prospectus. The Shares of Beneficial Interest of
the Trust conform in all respects to the description of them in the Prospectus.
All the outstanding Shares of Beneficial Interest have been duly authorized and
are validly issued, fully paid and nonassessable. The Shares to be issued and
delivered to and paid for by the Underwriters in accordance with the
Underwriting Agreement against payment therefor as provided by the Underwriting
Agreement have been duly authorized and when issued and delivered to the
Underwriters will have been validly issued and will be fully paid and
nonassessable (except as described in the Registration Statement). No person is
entitled to any preemptive or other similar rights with respect to the Shares.
4. The Trust is duly registered with the Commission under the
Investment Company Act as a non-diversified, closed-end management investment
company and all action under the Securities Act, the Investment Company Act, the
Securities Act Rules and the Investment Company Act Rules, as the case may be,
necessary to make
35
the public offering and consummate the sale of the Shares as provided in the
Underwriting Agreement has or will have been taken by the Trust.
5. The Trust has full power and authority to enter into each of the
Underwriting Agreement, the Investment Advisory Agreement, the Custody Agreement
and the Transfer Agency Agreement (collectively, the "Trust Agreements") and to
perform all of the terms and provisions thereof to be carried out by it and (A)
each Trust Agreement has been duly and validly authorized, executed and
delivered by the Trust, (B) each Trust Agreement complies in all material
respects with all applicable provisions of the Investment Company Act, the
Advisers Act , the Investment Company Act Rules and the Advisers Act Rules, as
the case may be, and (C) assuming due authorization, execution and delivery by
the other parties thereto, each Trust Agreement constitutes the legal, valid and
binding obligation of the Trust enforceable in accordance with its terms, (1)
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 (2) as rights to indemnity thereunder may be limited by federal or
state securities laws.
6. None of (A) the execution and delivery by the Trust of the Trust
Agreements, (B) the issue and sale by the Trust of the Shares as contemplated by
the Underwriting Agreement and (C) the performance by the Trust of its
obligations under the Trust Agreements or consummation by the Trust of the other
transactions contemplated by the Trust Agreements conflicts with or will
conflict with, or results or will result in a breach of, the Declaration of
Trust or the By-laws of the Trust or any agreement or instrument to which the
Trust is a party or by which the Trust is bound, or any law, rule or regulation,
or order of any court, governmental instrumentality, securities exchange or
association or arbitrator, whether foreign or domestic, applicable to the Trust,
except that we express no opinion as to the securities or "blue sky" laws
applicable in connection with the purchase and distribution of the Shares by the
Underwriters pursuant to the Underwriting Agreement.
7. The Trust is not currently in breach of, or in default under, any
written agreement or instrument to which it is a party or by which it or its
property is bound or affected.
8. 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 by the Trust for the consummation by the Trust
of the transactions to be performed by the Trust or the performance by the Trust
of all the terms and provisions to be performed by or on behalf of it in each
case as contemplated in the Trust Agreements, except such as (A) have been
obtained under the Securities Act, the In-
36
vestment Company Act, the Advisers Act, the Securities Act Rules, the Investment
Company Act Rules and the Advisers Act Rules and (B) 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
the Underwriting Agreement.
9. The Shares have been approved for listing on the New York Stock
Exchange, subject to official notice of issuance, and the Trust's Registration
Statement on Form 8-A under the 1934 Act is effective.
10. 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 our knowledge, threatened
against or affecting the Trust, which is required to be disclosed in the
Prospectus that is not disclosed in 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.
11. 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 Code.
12. Each of the sections in the Prospectus entitled "Distributions
and Taxes" and the section in the Statement of Additional Information entitled
"Taxes" is a fair summary of the principal United States federal income tax
rules currently in effect applicable to the Trust and to the purchase, ownership
and disposition of the Shares.
13. The Registration Statement (except the financial statements and
schedules and other financial data included therein as to which we express no
view), at the time it became effective, and the Prospectus (except as
aforesaid), as of the date thereof, complied as to form in all material respects
to the requirements of the Securities Act, the Investment Company Act and the
rules and regulations of the Commission thereunder.
In rendering our opinion, we have relied, as to factual matters,
upon the attached written certificates and statements of officers of the Trust.
In connection with the registration of the Shares, we have advised
the Trust as to the requirements of the Securities Act, the Investment Company
Act and the applicable rules and regulations of the Commission thereunder and
have rendered other legal advice and assistance to the Trust in the course of
its preparation of the Registration Statement and the Prospectus. Rendering such
assistance involved, among other things, discussions and inquiries concerning
various legal and related subjects and re-
37
views of certain corporate records, documents and proceedings. We also
participated in conferences with representatives of the Trust and its
accountants at which the contents of the Registration Statement and Prospectus
and related matters were discussed. With your permission, we have not
undertaken, except as otherwise indicated herein, to determine independently,
and do not assume any responsibility for, the accuracy, completeness or fairness
of the statements in the Registration Statement or Prospectus. On the basis of
the information which was developed in the course of the performance of the
services referred to above, no information has come to our attention that would
lead us to believe that the Registration Statement, at the time it became
effective, contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of its date and as
of the date hereof, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or that any amendment or supplement to the Prospectus, as
of its respective date, and as of the date hereof, contained any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements in the Prospectus, in the light of the
circumstances under which they were made, not misleading (except the financial
statements, schedules and other financial data included therein, as to which we
express no view).
38
ANNEX B
FORM OF OPINION OF INTERNAL COUNSEL
REGARDING XXXXX XXXXX MANAGEMENT
1. Xxxxx Xxxxx has been duly formed and is validly existing as a
Massachusetts business trust under the laws of its jurisdiction of incorporation
with full power and authority to conduct all of the activities conducted by it,
to own or lease all of the assets owned or leased by it and to conduct its
business as described in the Registration Statement and Prospectus, and Xxxxx
Xxxxx is duly licensed and qualified and in good standing in each other
jurisdiction in which it is required to be so qualified and Xxxxx Xxxxx owns,
possesses or has obtained and currently maintains all governmental licenses,
permits, consents, orders, approvals and other authorizations, whether foreign
or domestic, necessary for Xxxxx Xxxxx to carry on its business as contemplated
in the Registration Statement and the Prospectus.
2. Xxxxx Xxxxx is duly registered as an investment adviser under the
Advisers Act and is not prohibited by the Advisers Act, the Investment Company
Act, the Advisers Act Rules or the Investment Company Act Rules from acting as
investment adviser for the Trust as contemplated by the Investment Advisory
Agreement, the Registration Statement and the Prospectus.
3. Xxxxx Xxxxx has full power and authority to enter into each of the
Underwriting Agreement, the Investment Advisory Agreement, the Administration
Agreement and the Shareholder Servicing Agreement (collectively, the "Xxxxx
Xxxxx Agreements") and to carry out all the terms and provisions thereof to be
carried out by it, and each such agreement has been duly and validly authorized,
executed and delivered by Xxxxx Xxxxx; each Xxxxx Xxxxx Agreement complies in
all material respects with all provisions of the Investment Company Act, the
Advisers Act, the Investment Company Act Rules and the Advisers Act Rules; and
assuming due authorization, execution and delivery by the other parties thereto,
each Xxxxx Xxxxx Agreement constitutes a legal, valid and binding obligation of
Xxxxx Xxxxx, enforceable in accordance with its terms, (1) 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 (2) as
rights to indemnity thereunder may be limited by federal or state securities
laws.
4. Neither (A) the execution and delivery by Xxxxx Xxxxx of any Xxxxx
Xxxxx Agreement nor (B) the consummation by Xxxxx Xxxxx of the transactions
contemplated by, or the performance of its obligations under any Xxxxx Xxxxx
Agreement
39
conflicts or will conflict with, or results or will result in a breach of, the
Agreement and Declaration of Trust or By-Laws of Xxxxx Xxxxx or any agreement or
instrument to which Xxxxx Xxxxx is a party or by which Xxxxx Xxxxx 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 Xxxxx Xxxxx.
5. No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or association, whether
foreign or domestic, is required for the consummation of the transactions
contemplated in, or the performance by Xxxxx Xxxxx of its obligations under, any
Xxxxx Xxxxx Agreement, except such as have been obtained under the Investment
Company Act, the Advisers Act, the Securities Act, the Investment Company Act
Rules, the Advisers Act Rules and the Securities Act Rules.
6. The description of Xxxxx Xxxxx and its business, and the statements
attributable to Xxxxx Xxxxx, in the Registration Statement and the Prospectus
complies with the requirements of the Securities Act, the Investment Company
Act, the Securities Act Rules and the Investment Company Act Rules 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.
7. 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 our knowledge, threatened
against or affecting Xxxxx Xxxxx of a nature required to be disclosed in the
Registration Statement or Prospectus or that might reasonably result in any
material adverse change in the condition, financial or otherwise, business
affairs or business prospects of Xxxxx Xxxxx or the ability of Xxxxx Xxxxx to
fulfill its respective obligations under any Xxxxx Xxxxx Agreement.
8. The Registration Statement (except the financial statements and
schedules and other financial data included therein as to which we express no
view), at the time it became effective, and the Prospectus (except as
aforesaid), as of the date thereof, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act,
the Investment Company Act and the rules and regulations of the Commission
thereunder.
In rendering our opinion, we have relied, as to factual matters,
upon the attached written certificates and statements of officers of Xxxxx
Xxxxx.
In connection with the registration of the Shares, we have advised
Xxxxx Xxxxx as to the requirements of the Securities Act, the Investment Company
Act and
40
the applicable rules and regulations of the Commission thereunder and have
rendered other legal advice and assistance to Xxxxx Xxxxx in the course of the
preparation of the registration Statement and the Prospectus. Rendering such
assistance involved, among other things, discussions and inquiries concerning
various legal and related subjects and reviews of certain corporate records,
documents and proceedings. We also participated in conferences with
representatives of the Trust and its accountants and Xxxxx Xxxxx at which the
contents of the registration and Prospectus and related matters were discussed.
With your permission, we have not undertaken, except as otherwise indicated
herein, to determine independently, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements in the Registration
Statement or Prospectus. On the basis of the information which was developed in
the course of the performance of the services referred to above, no information
has come to our attention that would lead us to believe that the Registration
Statement, at the time it became effective, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus, as of its date and as of the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that any amendment
or supplement to the Prospectus, as of its respective date, and as of the date
hereof, contained any untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements in the
Prospectus, in the light of the circumstances under which they were made, not
misleading (except the financial statements, schedules and other financial data
included therein, as to which we express no view).
41
ANNEX C
Form of Opinion of Xxxxxxxxxxx & Xxxxxxxx LLP
The statements contained in the Prospectus under the heading
"DISTRIBUTIONS AND TAXES - Pennsylvania Taxes" and in Appendix C to the
Statement of Additional Information under the heading "PENNSYLVANIA AND U.S.
TERRITORY INFORMATION - Pennsylvania," to the extent that such statements
constitute matters of law or legal conclusions, provide a fair summary of such
law or conclusions. Such statements are based on current Pennsylvania tax laws
and our understanding of the Trust's proposed operations, as disclosed in the
Prospectus.
Although we do not pass upon or assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, and have not made any independent
check or verification thereof, no facts have come to our attention which would
lead us to believe that the material contained in the Prospectus under the
heading "DISTRIBUTIONS AND TAXES - Pennsylvania Taxes" and in Appendix C to the
Statement of Additional Information under the heading "PENNSYLVANIA AND U.S.
TERRITORY INFORMATION - Pennsylvania," at the time the Registration Statement
became effective, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of its date and as
of the date hereof, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or that any amendment or supplement to the Prospectus, as
of its respective date, and as of the date hereof, contained any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements in the Prospectus, in the light of the
circumstances under which they were made, not misleading.
In rendering the foregoing opinions, we have relied as to matters of fact,
to the extent we deem proper, on certificates of responsible officers of the
Trust and of the Investment Adviser, and of public officials.
42
ANNEX D
FORM OF ACCOUNTANT'S LETTER
January 29, 1999
The Board of Trustees of
Xxxxx Xxxxx Pennsylvania Municipal Income Trust
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Managing Representative of the Underwriters
Ladies and Gentlemen:
We have audited the statement of assets and liabilities of Xxxxx
Xxxxx Pennsylvania Municipal Income Trust (the "Trust") as of January ___, 1999
included in the Registration Statement on Form N-2 filed by the Trust under the
Securities Act of 1933 (the "Act") (File No. 333-68733) and under the Investment
Company Act of 1940 (the "1940 Act") (File No. 811-09151); such statement and
our report with respect to such statement are included in the Registration
Statement.
In connection with the Registration Statement:
1. We are independent public accountants with respect to the Trust
within the meaning of the Act and the applicable rules and
regulations thereunder.
2. In our opinion, the statement of assets and liabilities included
in the Registration Statement and audited by us complies as to form
in all respects with the applicable accounting requirements of the
Act, the 1940 Act and the respective rules and regulations
thereunder.
3. For purposes of this letter we have read the minutes of all
meetings of the Shareholders, the Board of Trustees and all
Committees of the Board of Trustees of the Trust as set forth in the
minute books at the offices of the Trust, officials of the Trust
having advised us that the minutes of all such meetings through
January ___, 1999, were set forth therein.
43
4. Trust officials have advised us that no financial statements as
of any date subsequent to January ___, 1999, are available. We have
made inquiries of certain officials of the Trust who have
responsibility for financial and accounting matters regarding
whether there was any change at January ___, 1999, in the capital
shares or net assets of the Trust as compared with amounts shown in
the January ___, 1999, statement of assets and liabilities included
in the Registration Statement, except for changes that the
Registration Statement discloses have occurred or may occur. On the
basis of our inquiries and our reading of the minutes as described
in Paragraph 3, nothing came to our attention that caused us to
believe that there were any such changes.
The foregoing procedures do not constitute an audit made in
accordance with generally accepted auditing standards. Accordingly, we make no
representations as to the sufficiency of the foregoing procedures for your
purposes.
This letter is solely for the information of the addressees
and to assist the underwriters in conducting and documenting their investigation
of the affairs of the Trust in connection with the offering of the securities
covered by the Registration Statement, and is not to be used, circulated, quoted
or otherwise referred to within or without the underwriting group for any other
purpose, including but not limited to the registration, purchase or sale of
securities, nor is it to be filed with or referred to in whole or in part in the
Registration Statement or any other document, except that reference may be made
to it in the underwriting agreement or in any list of closing documents
pertaining to the offering of the securities covered by the Registration
Statement.
Very truly yours,
DELOITTE & TOUCHE LLP
