1
EXHIBIT (h)
EXECUTION COPY
COLONIAL NEW YORK INSURED MUNICIPAL FUND
_________ Shares
Common Shares of Beneficial Interest
UNDERWRITING AGREEMENT
November __, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇▇▇▇▇ ▇▇▇▇▇▇ INCORPORATED
As Representatives of the
several Underwriters listed in
Schedule I hereto
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Colonial New York Insured Municipal Fund, a Massachusetts
business trust (the "Trust"), proposes, upon the terms and conditions set forth
herein, to issue and sell an aggregate of _________ shares (the "Firm Shares")
of its common shares of beneficial interest, no par value per share (the "Common
Shares"). The Trust also proposes to grant to the Underwriters (as defined
below), upon the terms and subject to the conditions set forth herein, an option
to purchase up to _______ additional shares (the "Option Shares" and together
with the Firm Shares, the "Shares") of its Common Shares. The Shares will be
authorized by, and subject to the terms and conditions of, the Agreement and
Declaration of Trust of the Trust, as amended (the "Declaration"), in the form
filed as an exhibit to the Registration Statement referred to in Section 1 of
this agreement. The Trust and its investment adviser, Colonial Management
Associates, Inc. ("CMA" or the "Advisor"), wish to confirm as follows their
agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. and ▇▇▇▇▇
▇▇▇▇▇▇ Incorporated (the "Representatives"), as representatives of the several
Underwriters listed in Schedule I hereto (the "Underwriters"), in connection
with the purchase of the Shares by the Underwriters.
Collectively, the Management Agreement dated as of October 25,
1999 between the Trust and CMA (the "Management Agreement"), the Custodian
Agreement, as amended through the date hereof, dated as of August 17, 1997
between the Trust and The Chase Manhattan Bank (the "Custodian
2
2
Agreement"), and the Stock Transfer Agent Agreement dated as of October 25, 1999
between the Trust and BankBoston, N.A. (the "Transfer Agency Agreement") are
hereinafter referred to as the "Trust Agreements." This Underwriting Agreement
is hereinafter referred to as the "Agreement."
1. Registration Statement and Prospectus. The Trust has
prepared in conformity with the provisions of the Securities Act of 1933, as
amended (the "1933 Act"), the Investment Company Act of 1940, as amended (the
"1940 Act"), and the rules and regulations of the Securities and Exchange
Commission (the "Commission") promulgated under the 1933 Act (the "1933 Act
Rules and Regulations") and the 1940 Act (the "1940 Act Rules and Regulations"
and, together with the 1933 Act Rules and Regulations, the "Rules and
Regulations") a registration statement on Form N-2, as amended (File Nos.
333-84991 and 811-09539), under the 1933 Act and the 1940 Act (the "registration
statement"), including a prospectus relating to the Shares, and has filed the
registration statement and prospectus in accordance with the 1933 Act and the
1940 Act. The Trust also has filed a notification of registration of the Trust
as an investment company under the 1940 Act on Form N-8A (the "1940 Act
Notification"). The term "Registration Statement" as used in this Agreement
means the registration statement (including all financial schedules and
exhibits), as amended at the time it becomes effective under the 1933 Act or, if
the registration statement became effective under the 1933 Act prior to the
execution of this Agreement, as amended or supplemented at the time it became
effective, prior to the execution of this Agreement. If it is contemplated, at
the time this Agreement is executed, that a post-effective amendment to the
registration statement will be filed under the 1933 Act and must be declared
effective before the offering of the Shares may commence, the term "Registration
Statement" as used in this Agreement means the registration statement as amended
by said post-effective amendment. If the Trust has filed an abbreviated
registration statement to register an additional amount of Shares pursuant to
Rule 462(b) under the 1933 Act (the "Rule 462 Registration Statement"), then any
reference herein to the term "Registration Statement" shall include such Rule
462 Registration Statement. The term "Prospectus" as used in this Agreement
means the prospectus and statement of additional information in the forms
included in the Registration Statement as supplemented by the addition of the
information contained in the prospectus filed with the Commission pursuant to
Rule 497(h). The term "Prepricing Prospectus" as used in this Agreement means
the prospectus and statement of additional information subject to completion in
the forms included in the registration statement at the time of filing of
amendment no. 2 to the registration statement with the Commission on September
27, 1999, and as such prospectus and statement of additional information shall
have been amended from time to time prior to the date of the Prospectus,
together with any other prospectus and statement of additional information
relating to the Trust other than the Prospectus approved in writing by or
directly or indirectly prepared by the Trust or the Advisor; it being understood
that the definition of Prepricing Prospectus above shall not include any
Prepricing Prospectus prepared by the Underwriters unless approved in writing by
the Trust or the Advisor. The terms "Registration Statement," "Prospectus" and
"Prepricing Prospectus" shall also include any financial statements and other
information incorporated by reference therein.
3
3
The Trust has furnished you with copies of such registration
statement, each amendment to such registration statement filed with the
Commission and each Prepricing Prospectus.
2. Agreements to Sell and Purchase. (a) The Trust hereby
agrees, subject to all the terms and conditions set forth herein, to issue and
sell to the Underwriters and, upon the basis of the representations, warranties
and agreements of the Trust and the Advisor herein contained and subject to all
the terms and conditions set forth herein, each Underwriter agrees severally and
not jointly to purchase from the Trust, at a purchase price of $15.00 per share,
the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto.
(b) The Trust also agrees, subject to all the terms and
conditions set forth herein, to sell to the Underwriters, and, upon the basis of
the representations, warranties and agreements of the Trust herein contained and
subject to all the terms and conditions set forth herein, the Underwriters shall
have the right to purchase from the Trust, at the same purchase price per share
as the Underwriters shall pay for the Firm Shares, pursuant to an option (the
"over-allotment option") which may be exercised at any time and from time to
time prior to 9:00 P.M., New York City time, on the 45th day after the date of
the Prospectus (or, if such 45th day shall be a Saturday or Sunday or a holiday,
on the next business day thereafter when the American Stock Exchange is open for
trading), up to an aggregate of _______ Option Shares. Option Shares may be
purchased only for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. Upon any exercise of the over-allotment
option, each Underwriter, severally and not jointly, agrees to purchase from the
Trust the number of Option Shares (subject to such adjustments as you may
determine in order to avoid fractional shares) which bears the same proportion
to the number of Option Shares to be purchased by the Underwriters as the number
of Firm Shares set forth opposite the name of such Underwriter in Schedule I
hereto (or such number of Firm Shares increased as set forth in Section 11
hereof) bears to the aggregate number of Firm Shares.
(c) The Trust also agrees, subject to all the terms and
conditions set forth herein, to sell to the Advisor, and, upon the basis of the
representations, warranties and agreements of the Trust herein contained and
subject to all the terms and conditions set forth herein, the Advisor shall have
the right to purchase from the Trust, at the same purchase price per share as
the Underwriters shall pay for the Option Shares, pursuant to an option (the
"Advisor Option") which may be exercised at any time and from time to time prior
to 9:00 P.M., New York City time, on the 45th day after the date of the
Prospectus (or, if such 45th day shall be a Saturday or Sunday or a holiday, on
the next business day thereafter when the American Stock Exchange is open for
trading), up to an aggregate of 1,000 shares of beneficial interest of the Trust
(the "Advisor Shares").
3. Terms of Public Offering. The Trust and the Advisor have
been advised by you that the Underwriters propose to make a public offering of
their respective Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable and initially
to offer the Shares upon the terms set forth in the Prospectus.
4
4
4. Delivery of the Shares and Payment Therefor. Delivery to
the Underwriters of and payment for the Firm Shares and the Option Shares (if
the option provided for in Section 2(b) hereof shall have been exercised on or
before the third business day prior to the Closing Date (as defined below))
shall be made at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, at 9:30 A.M., New York City time, on November [19], 1999
(the "Closing Date"). The place of closing for the Firm Shares and the Closing
Date may be varied by agreement between you and the Trust.
Delivery to the Underwriters of and payment for any Option
Shares to be purchased by the Underwriters shall be made at the aforementioned
office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ at such time on such date (the "Option
Closing Date"), which may be the same as the Closing Date but shall in no event
be earlier than the Closing Date nor earlier than two nor later than ten
business days after the giving of the notice hereinafter referred to, as shall
be specified in a written notice from you on behalf of the Underwriters to the
Trust of the Underwriters' determination to purchase a number, specified in such
notice, of Option Shares. The place of closing for any Option Shares and the
Option Closing Date for such Shares may be varied by agreement between you and
the Trust.
The place and time for the closing of the Advisor Shares shall
be as agreed upon by the Advisor and the Trust, except that the date of such
closing for the Advisor Shares shall in no event be earlier than the Closing
Date.
Certificates for the Firm Shares and for any Option Shares to
be purchased hereunder shall be registered in such names and in such
denominations as you shall request prior to 9:30 A.M., New York City time, on
the second business day preceding the Closing Date or any Option Closing Date,
as the case may be. Such certificates shall be made available to you in New York
City for inspection and packaging not later than 9:30 A.M., New York City time,
on the business day next preceding the Closing Date or the Option Closing Date,
as the case may be. The certificates evidencing the Firm Shares and any Option
Shares to be purchased hereunder shall be delivered to you on the Closing Date
or the Option Closing Date, as the case may be, through the facilities of The
Depository Trust Company, against payment of the purchase price therefor in
immediately available funds.
5. Agreements of the Trust and the Advisor. The Trust and the
Advisor, jointly and severally, agree with the several Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective under the 1933 Act before
the offering of the Shares may commence, the Trust will endeavor to
cause the Registration Statement or such post-effective amendment to
become effective under the 1933 Act as soon as possible and will advise
you promptly and, if requested by you, will confirm such advice in
writing when the Registration Statement or such post-effective
amendment has become effective.
5
5
(b) The Trust will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) of any request made by
the Commission for amendment of or a supplement to the Registration
Statement, any Prepricing Prospectus or the Prospectus (or any
amendment or supplement to any of the foregoing) or for additional
information, (ii) of the issuance by the Commission, the National
Association of Securities Dealers, Inc. (the "NASD"), any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official of any order
suspending the effectiveness of the Registration Statement, prohibiting
or suspending the use of the Prospectus or any Prepricing Prospectus,
or any sales material (as hereinafter defined), of any notice pursuant
to Section 8(e) of the 1940 Act, of the suspension of qualification of
the Shares for offering or sale in any jurisdiction, or the initiation
of any proceeding for any such purposes, (iii) of receipt by the Trust,
the Advisor, any affiliate of the Trust or the Advisor or any
representative or attorney of the Trust or the Advisor of any other
material communication from the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official relating to
the Trust (if such communication relating to the Trust is received by
such person within three years after the date of this Agreement), the
Registration Statement, the 1940 Act Notification, the Prospectus, any
Prepricing Prospectus, any sales material (as herein defined) (or any
amendment or supplement to any of the foregoing) or this Agreement or
any of the Trust Agreements and (iv) within the period of time referred
to in paragraph (f) below, of any material adverse change in the
condition (financial or other), business, prospects, properties, net
assets or results of operations of the Trust or the Advisor or of the
happening of any other event which makes any statement of a material
fact made in the Registration Statement or the Prospectus, or any
Prepricing Prospectus or any sales materials (as herein defined) (or
any amendment or supplement to any of the foregoing) untrue or which
requires the making of any additions to or changes in the Registration
Statement or the Prospectus, or any Prepricing Prospectus or any sales
materials (as herein defined) (or any amendment or supplement to any of
the foregoing) in order to state a material fact required by the 1933
Act, the 1940 Act or the Rules and Regulations to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or of the
necessity to amend or supplement the Registration Statement, the
Prospectus, or any Prepricing Prospectus or any sales material (as
herein defined) (or any amendment or supplement to any of the
foregoing) to comply with the 1933 Act, the 1940 Act, the Rules and
Regulations or any other law or order of any court or regulatory body.
If at any time the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court
or any other governmental, regulatory, self-regulatory or
administrative agency or any official shall issue any order suspending
the effectiveness of the Registration Statement, prohibiting or
suspending the use of the Prospectus or any sales material (as herein
defined) (or any amendment or supplement to any of the foregoing) or
suspending the qualification of the Shares for offering or sale in any
jurisdiction, the Trust will make every reasonable effort to obtain the
withdrawal of such order at the earliest possible time.
6
6
(c) The Trust will furnish to you, without charge, three
signed copies of the Registration Statement as originally filed with
the Commission and of each amendment thereto, including financial
statements and all exhibits thereto, and will also furnish to you,
without charge, such number of conformed copies of the Registration
Statement as originally filed and of each amendment thereto, but
without exhibits, as you may request.
(d) The Trust will not (i) file any amendment to the
Registration Statement or make any amendment or supplement to the
Prospectus, or any sales material (as herein defined), of which you
shall not previously have been advised or to which you shall reasonably
object after being so advised or (ii) so long as, in the opinion of
counsel for the Underwriters, a Prospectus is required by the 1933 Act
to be delivered in connection with sales by any Underwriter or any
dealer, file any information, documents or reports pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), without
delivering a copy of such information, documents or reports to you, as
Representatives of the several Underwriters, prior to or concurrently
with such filing.
(e) Prior to the execution and delivery of this Agreement, the
Trust has delivered to you, without charge, in such quantities as you
have requested, copies of each form of the Prepricing Prospectus. The
Trust consents to the use, in accordance with the provisions of the
1933 Act and with the state securities or blue sky laws of the
jurisdictions in which the Shares are offered by the several
Underwriters and by dealers, prior to the date of the Prospectus, of
each Prepricing Prospectus so furnished by the Trust.
(f) As soon after the execution and delivery of this Agreement
as possible and thereafter from time to time for such period as in the
opinion of counsel for the Underwriters a prospectus is required by the
1933 Act to be delivered in connection with sales by any Underwriter or
any dealer, the Trust will expeditiously deliver to each Underwriter
and each dealer, without charge, as many copies of the Prospectus (and
of any amendment or supplement thereto) as you may reasonably request.
The Trust consents to the use of the Prospectus (and of any amendment
or supplement thereto) in accordance with the provisions of the 1933
Act and with the state securities or blue sky laws of the jurisdictions
in which the Shares are offered by the several Underwriters and by all
dealers to whom Shares may be sold, both in connection with the
offering and sale of the Shares and for such period of time thereafter
as the Prospectus is required by the 1933 Act to be delivered in
connection with sales by any Underwriter or any dealer. If during such
period of time any event shall occur that in the judgment of the Trust
or in the opinion of counsel for the Underwriters is required to be set
forth in the Registration Statement or the Prospectus (as then amended
or supplemented) or should be set forth therein in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary to supplement or amend
the Registration Statement or the Prospectus to comply with the 1933
Act, the 1940 Act, the Rules and Regulations or any other federal law,
rule or regulation, or any state securities or blue sky disclosure
laws, rules or regulations, the Trust will forthwith prepare and,
subject to the provisions of paragraph (d) above, promptly file with
the Commission an
7
7
appropriate supplement or amendment thereto, and will expeditiously
furnish to the Underwriters and dealers, without charge, a reasonable
number of copies thereof; provided that, if the supplement or amendment
is required exclusively as a result of a misstatement in or omission
from the information provided to the Trust in writing by the
Underwriters expressly for use in the Prospectus, the Trust may deliver
such supplement or amendment to the Underwriters and dealers at a
reasonable charge not to exceed the actual cost thereof to the Trust.
In the event that the Trust and you, as Representatives of the several
Underwriters, agree that the Registration Statement or the Prospectus
should be amended or supplemented, the Trust, if requested by you, will
promptly issue a press release announcing or disclosing the matters to
be covered by the proposed amendment or supplement.
(g) The Trust will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of
the Shares for offering and sale by the several Underwriters and by
dealers under the securities or blue sky laws of such jurisdictions as
you may designate and will file such consents to service of process or
other documents necessary or appropriate in order to effect such
registration or qualification; provided that in no event shall the
Trust be obligated to qualify to do business or as a dealer in
securities in any jurisdiction where it is not now so qualified or to
take any action which would subject it to service of process in suits,
other than those arising out of the offering or sale of the Shares, in
any jurisdiction where it is not now so subject nor will the Trust be
obligated to execute a general consent to service of process.
(h) The Trust will make generally available to its security
holders an earnings statement, which need not be audited, covering a
twelve-month period ending not later than 15 months after the effective
date of the Registration Statement as soon as practicable after the end
of such period, which earnings statement shall satisfy the provisions
of Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and
Regulations.
(i) During the period of five years hereafter, the Trust will
furnish to you (i) as soon as available, a copy of each report of the
Trust mailed to shareholders or filed with the Commission or furnished
to the American Stock Exchange (the "AMEX") other than reports on Form
N-SAR, and (ii) from time to time such other information concerning the
Trust as you may reasonably request.
(j) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than by
notice given by you terminating this Agreement pursuant to Section 12
hereof or pursuant to the second paragraph of Section 11 hereof) or if
this Agreement shall be terminated by the Underwriters because of any
failure or refusal on the part of the Trust or the Advisor to comply
with the terms or fulfill any of the conditions of this Agreement, the
Trust and the Advisor, jointly and severally, agree to reimburse the
Representatives for all out-of-pocket expenses (including reasonable
fees and expenses of counsel for the Underwriters) incurred by the
Underwriters in connection herewith.
8
8
(k) The Trust will apply the net proceeds from the sale of the
Firm Shares, and of the Option Shares, if any, substantially in
accordance with the description set forth in the Prospectus and in such
a manner as to comply with the investment objectives, policies and
restrictions of the Trust as described in the Prospectus.
(l) The Trust will timely file the requisite copies of the
Prospectus with the Commission pursuant to Rule 497(c) or Rule 497(h)
of the 1933 Act Rules and Regulations, whichever is applicable or, if
applicable, will timely file the certification permitted by Rule 497(j)
of the 1933 Act Rules and Regulations and will advise you of the time
and manner of such filing.
(m) Except as provided in this Agreement, the Trust will not
sell, contract to sell or otherwise dispose of any Common Shares or any
securities convertible into or exercisable or exchangeable for Common
Shares, or grant any options or warrants to purchase Common Shares, for
a period of 180 days after the date of the Prospectus, without the
prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.; provided, however,
that the Trust may issue and make open market purchases of Common
Shares pursuant to any dividend reinvestment plan of the Trust in
effect as of the Closing Date.
(n) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, and except for share repurchases, tender
offers or purchases of Shares in the open market pursuant to the
Trust's dividend reinvestment plan, neither the Trust nor the Advisor
has taken, nor will it take, directly or indirectly, any action
designed to or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Shares or any other
securities issued by the Trust to facilitate the sale or resale of the
Shares.
(o) The Trust will use its best efforts to cause the Shares to
be duly authorized for listing by the AMEX prior to the date the Shares
are issued.
(p) The Trust will use its best efforts to comply with all
requirements under the Internal Revenue Code of 1986, as amended (the
"Code") to qualify as a regulated investment company under Subchapter M
of the Code.
(q) The Trust and the Advisor will each use its best efforts
to perform all of the agreements required of it and discharge all
conditions to closing as set forth in this Agreement.
6. Representations and Warranties of the Trust and the
Advisor. The Trust and the Advisor, jointly and severally, represent and warrant
to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the
registration statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 497 of the 1933 Act Rules and
Regulations, complied when so filed in all material respects with the
9
9
provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The
Commission has not issued any order preventing or suspending the use of any
Prepricing Prospectus.
(b) The registration statement in the form in which it became
or becomes effective and also in such form as it may be when any post-effective
amendment thereto shall become effective and the Prospectus and any supplement
or amendment thereto when filed with the Commission under Rule 497 of the 1933
Act Rules and Regulations and the 1940 Act Notification when originally filed
with the Commission and any amendment or supplement thereto when filed with the
Commission, complied or will comply in all material respects with the
requirements of the 1933 Act, the 1940 Act and the Rules and Regulations, as
applicable, and did not or will not at any such times contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that this
representation and warranty does not apply to (i) statements in or omissions
from the registration statement or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Trust
in writing by or on behalf of any Underwriter expressly for use therein or (ii)
with respect to the representations of the Trust, the description of the Advisor
contained in the Prospectus under the heading "Management of the Fund."
(c) All the outstanding shares of beneficial interest of the
Trust have been duly authorized and validly issued, are fully paid and, except
as set forth in the Statement of Additional Information of the Trust under
"Shareholder Liability," nonassessable and are free of any preemptive or similar
rights; the Shares have been duly authorized and, when issued and delivered to
the Underwriters against payment therefor in accordance with the terms hereof,
will be validly issued, fully paid and, except as set forth in the Statement of
Additional Information of the Trust under "Shareholder Liability," nonassessable
and free of any preemptive or similar rights that entitle or will entitle any
person to acquire any Shares upon the issuance thereof by the Trust, and will
conform to the description thereof in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them); and the
capitalization of the Trust conforms to the description thereof in the
Registration Statement and the Prospectus (and any amendment or supplement to
either of them).
(d) Except for the Option Shares and the Advisor Shares and as
otherwise described in the Prospectus, there are no outstanding options,
warrants or other rights calling for the issuance of, or any commitment, plan or
arrangement to issue, any shares of beneficial interest of the Trust or any
security convertible into or exchangeable or exercisable for shares of
beneficial interest of the Trust.
(e) The Trust is a business trust duly organized and validly
existing in good standing under the laws of the Commonwealth of Massachusetts
with full business trust power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them), and is duly registered and qualified to conduct its business and is in
good standing in each jurisdiction or place where the nature of its properties
or the conduct of its business requires such registration or qualification,
except where the failure so to register or qualify does not have a
10
10
material adverse effect on the condition (financial or other), business,
prospects, properties, net assets or results of operations of the Trust; and the
Trust has no subsidiaries.
(f) There are no legal or governmental proceedings pending or,
to the knowledge of the Trust, threatened, against the Trust, or to which the
Trust or any of its properties is subject, that are required to be described in
the Registration Statement or the Prospectus (and any amendment or supplement to
either of them) but are not described as required, and there are no agreements,
contracts, indentures, leases or other instruments that are required to be
described in the Registration Statement or the Prospectus (and any amendment or
supplement to either of them) or to be filed as an exhibit to the Registration
Statement that are not described or filed as required by the 1933 Act, the 1940
Act or the Rules and Regulations.
(g) The Trust is not in violation of the Declaration or its
bylaws (the "Bylaws"), or other organizational documents of the Trust (together
with the Declaration and the Bylaws, the "Organizational Documents") or of any
law, ordinance, administrative or governmental rule or regulation applicable to
the Trust or of any decree of the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court or
governmental agency, body or official having jurisdiction over the Trust, or in
default in the performance of any material obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of indebtedness or
in any material agreement, indenture, lease or other instrument to which the
Trust is a party or by which it or any of its properties may be bound, except
where such violation does not have a material adverse effect on the condition
(financial or other), business, prospects, properties, net assets or results of
operations of the Trust.
(h) Neither the issuance and sale of the Shares, the
execution, delivery or performance of this Agreement or any of the Trust
Agreements by the Trust, nor the consummation by the Trust of the transactions
contemplated hereby or thereby (A) requires any consent, approval, authorization
or other order of, or registration or filing with, the Commission, the NASD, any
state securities commission, any national securities exchange, any arbitrator,
any court, regulatory body, administrative agency or other governmental body,
agency or official (except such as may have been obtained prior to the date
hereof and such as may be required for compliance with the state securities or
blue sky laws of various jurisdictions which have been or will be effected in
accordance with this Agreement) or conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the
Organizational Documents or (B) conflicts or will conflict with or constitutes
or will constitute a breach of, or a default under, any agreement, indenture,
lease or other instrument to which the Trust is a party or by which it or any of
its properties may be bound, or violates or will violate any statute, law,
regulation or judgment, injunction, order or decree applicable to the Trust or
any of its properties, or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Trust pursuant to the
terms of any agreement or instrument to which it is a party or by which it may
be bound or to which any of its property or assets is subject. The Trust is not
subject to any order of any court or of any arbitrator, governmental authority
or administrative agency.
11
11
(i) The accountants, PricewaterhouseCoopers LLP, who have
certified or shall certify the financial statements included or incorporated by
reference in the Registration Statement and the Prospectus (or any amendment or
supplement to either of them) are independent public accountants as required by
the 1933 Act, the 1940 Act and the Rules and Regulations.
(j) The financial statements, together with related schedules
and notes, included or incorporated by reference in the Registration Statement
and the Prospectus (and any amendment or supplement to either of them), present
fairly the financial position, results of operations and changes in financial
position of the Trust on the basis stated or incorporated by reference in the
Registration Statement at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data included
in the Registration Statement and the Prospectus (and any amendment or
supplement to either of them) are accurately presented and prepared on a basis
consistent with such financial statements and the books and records of the
Trust.
(k) The execution and delivery of, and the performance by the
Trust of its obligations under, this Agreement and the Trust Agreements have
been duly and validly authorized by the Trust, and this Agreement and the Trust
Agreements have been duly executed and delivered by the Trust and assuming due
authorization, execution and delivery by the other parties thereto, constitute
the valid and legally binding agreements of the Trust, enforceable against the
Trust in accordance with their terms (subject to the qualification that the
enforceability of the Trust's obligations thereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium, and similar laws of general
applicability relating to or affecting creditors' rights, and to general
principles of equity regardless of whether enforceability is considered in a
proceeding in equity or at law), except as rights to indemnity and contribution
hereunder and thereunder may be limited by federal or state securities laws.
(l) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement to either of them),
the Trust has not incurred any liability or obligation, direct or contingent, or
entered into any transaction, not in the ordinary course of business, that is
material to the Trust, and there has not been any change in the capitalization,
or material increase in the short-term debt or long-term debt, of the Trust, or
any material adverse change, or any development involving or which may
reasonably be expected to involve, a prospective material adverse change, in the
condition (financial or other), business, prospects, properties, net assets or
results of operations of the Trust, whether or not arising in the ordinary
course of business (a "Material Adverse Effect").
(m) The Trust has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of the
Shares, will not distribute any offering material in connection with the
offering and sale of the Shares other than the Registration Statement, the
12
12
Prepricing Prospectus, the Prospectus or other materials, if any, permitted by
the 1933 Act, the 1940 Act or the Rules and Regulations.
(n) (i) The Trust has such permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("permits") as are
necessary to own its properties and to conduct its business in the manner
described in the Prospectus (and any amendment or supplement thereto), except
for any such permits the absence of which would not have a Material Adverse
Effect and subject to such qualifications as may be set forth in the Prospectus;
(ii) the Trust has fulfilled and performed all its material obligations with
respect to such permits and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the Trust under any such permit,
subject in each case to such qualification as may be set forth in the Prospectus
(and any amendment or supplement thereto); and (iii) except as described in the
Prospectus (and any amendment or supplement thereto), none of such permits
contains any restriction that is materially burdensome to the Trust, except
where the failure of (i), (ii) or (iii) to be accurate would not, individually
or in the aggregate, have a Material Adverse Effect on the Trust.
(o) The Trust maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization and
with the applicable requirements of the 1940 Act, the 1940 Act Rules and
Regulations and the Code; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets and to maintain
compliance with the books and records requirements under the 1940 Act and the
1940 Act Rules and Regulations; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(p) To the Trust's knowledge, neither the Trust nor any
employee or agent of the Trust has made any payment of funds of the Trust or
received or retained any funds, which payment, receipt or retention of funds is
of a character required to be disclosed in the Prospectus, except for the
issuance of up to 6,667 shares of beneficial interest of the Trust to the
Advisor to comply with the net worth requirements of Section 14(a) of the ▇▇▇▇
▇▇▇.
(q) The Trust has filed all tax returns required to be filed,
if any, which returns are complete and correct in all material respects, and the
Trust is not in default in the payment of any taxes which were payable pursuant
to said returns or any assessments with respect thereto.
(r) No holder of any security of the Trust has any right to
require registration of any security of the Trust because of the filing of the
registration statement or consummation of the transactions contemplated by this
Agreement.
(s) The Trust, subject to the registration statement having
been declared effective and the filing of the Prospectus under Rule 497 under
the 1933 Act Rules and Regulations, has taken all required action under the 1933
Act, the 1940 Act and the Rules and Regulations to
13
13
make the public offering and consummate the sale of the Shares as contemplated
by this Agreement.
(t) The conduct by the Trust of its business (as described in
the Prospectus) does not require it to be the owner, possessor or licensee of
any patents, patent licenses, trademarks, service marks or trade names which it
does not own, possess or license.
(u) The Trust is registered under the 1940 Act as a
closed-end, non-diversified management investment company and the 1940 Act
Notification has been duly filed with the Commission and, at the time of filing
thereof and any amendment or supplement thereto, conformed in all material
respects with all applicable provisions of the 1940 Act and the 1940 Act Rules
and Regulations. The Trust has not received any notice from the Commission
pursuant to Section 8(e) of the 1940 Act with respect to the 1940 Act
Notification. The Trust is, and at all times through the completion of the
transactions contemplated hereby, will be, in compliance in all material
respects with the terms and conditions of the 1933 Act and the 1940 Act. No
person is serving or acting as an officer, director or investment adviser of the
Trust except in accordance with the provisions of the 1940 Act and the 1940 Act
Rules and Regulations and the Investment Advisers Act of 1940, as amended (the
"Advisers Act"), and the rules and regulations of the Commission promulgated
under the Advisers Act (the "Advisers Act Rules and Regulations").
(v) Except as stated in this Agreement and in the Prospectus
(and any amendment or supplement thereto), the Trust has not taken, nor will it
take, directly or indirectly, any action designed to or which might reasonably
be expected to cause or result in stabilization or manipulation of the price of
any securities issued by the Trust to facilitate the sale or resale of the
Shares, and the Trust is not aware of any such action taken or to be taken by
any affiliates of the Trust.
(w) All advertising and other sales literature (including
"prospectus wrappers") authorized in writing by or prepared by the Trust or the
Advisor for use in connection with the offering and sale of the Shares
(collectively, "sales material") complied and comply in all material respects
with the applicable requirements of the 1933 Act, the 1940 Act, the Rules and
Regulations and the rules and interpretations of the NASD and no such sales
material contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
The "broker kits" prepared by or approved by the Trust or the
Advisor for distribution to and use internally by brokers and dealers
participating in the offering of the Shares accurately and fairly presents the
information contained therein in all material respects for purposes of such
internal use and contains only information the substance of which is included in
the Prospectus or the Statement of Additional Information of the Trust. Any road
show slides and road show scripts prepared or approved in writing by the Trust
or the Advisor for use in presentations to brokers and dealers participating in
the offering of the Shares accurately and fairly present the information
contained therein in all material respects for purposes of such use.
14
14
(x) Each of the Trust Agreements and the Trust's obligations
under this Agreement and each of the Trust Agreements comply in all material
respects with all applicable provisions of the 1933 Act, the 1940 Act, the Rules
and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(y) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them), no director of
the Trust is an "interested person" (as defined in the ▇▇▇▇ ▇▇▇) of the Trust or
an "affiliated person" (as defined in the ▇▇▇▇ ▇▇▇) of any Underwriter.
(z) The Shares have been duly authorized for listing, subject
to official notice of issuance, on the AMEX.
(aa) The Advisor has considered, and is taking actions to
address, the possible adverse effects of the Year 2000 on the critical computer
systems used by the Advisor and its affiliates on behalf of the Trust. Testing
and remediation of those systems is complete and the Advisor has determined that
recognition and execution of date-sensitive functions involving certain dates
prior to and after December 31, 1999 (the "Year 2000 Problem") will not pose
significant problems for the computer systems used by the Advisor on behalf of
the Trust. The Advisor believes, after reasonable inquiry, that suppliers,
vendors, or financial service organizations used in the operation of the Trust
have remedied or will remedy the Year 2000 Problem and that those suppliers,
vendors or financial service organizations believe that their modifications will
be completed on a timely basis, except to the extent that a failure to remedy by
any such supplier, vendor, or financial service organization would not have a
material adverse effect on the operations of the Trust. The Trust is in
compliance with the Commission's Release No. 33-7558 related to Year 2000
compliance, as amended to date.
7. Representations and Warranties of the Advisor. CMA
represents and warrants to each Underwriter that:
(a) The Advisor is a corporation duly incorporated and validly
existing in good standing under the laws of the Commonwealth of Massachusetts,
with full corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them), and is duly
registered and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the failure
so to register or to qualify does not have a material adverse effect on the
condition (financial or other), business, prospects, properties, net assets or
results of operations of the Advisor or on the ability of the Advisor to perform
its obligations under this Agreement and the Management Agreement.
(b) The Advisor is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by the Advisers
Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules
and Regulations from acting under the Management Agreement for the Trust as
contemplated by the Prospectus (or any amendment or
15
15
supplement thereto). There does not exist any proceeding or any facts or
circumstances the existence of which could lead to any proceeding which might
adversely affect the registration of the Advisor with the Commission.
(c) There are no legal or governmental proceedings pending or,
to the knowledge of the Advisor, threatened against the Advisor, or to which the
Advisor or any of its properties is subject, that are required to be described
in the Registration Statement or the Prospectus (or any amendment or supplement
to either of them) but are not described as required or that may reasonably be
expected to involve a prospective material adverse change, in the condition
(financial or other), business, prospects, properties, net assets or results of
operations of the Advisor or on the ability of the Advisor to perform its
obligations under this Agreement and the Management Agreement.
(d) Neither the execution, delivery or performance of this
Agreement or the performance of the Management Agreement by the Advisor, nor the
consummation by the Advisor of the transactions contemplated hereby or thereby
(A) requires the Advisor to obtain any consent, approval, authorization or other
order of or registration or filing with, the Commission, the NASD, any state
securities commission, any national securities exchange, any arbitrator, any
court, regulatory body, administrative agency or other governmental body, agency
or official or conflicts or will conflict with or constitutes or will constitute
a breach of or a default under, the certificate of incorporation or by-laws, or
other organizational documents, of the Advisor or (B) conflicts or will conflict
with or constitutes or will constitute a breach of or a default under, any
agreement, indenture, lease or other instrument to which the Advisor is a party
or by which it or any of its properties may be bound, or violates or will
violate any statute, law, regulation or filing or judgment, injunction, order or
decree applicable to the Advisor or any of its properties or will result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Advisor pursuant to the terms of any agreement or instrument to
which it is a party or by which it may be bound or to which any of the property
or assets of the Advisor is subject. The Advisor is not subject to any order of
any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the
Advisor of its obligations under, this Agreement and the Management Agreement
have been duly and validly authorized by the Advisor, and this Agreement and the
Management Agreement have been duly executed and delivered by the Advisor and,
assuming due authorization, execution and delivery by the other parties thereto,
each constitutes the valid and legally binding agreement of the Advisor,
enforceable against the Advisor in accordance with its terms (subject to the
qualification that the enforceability of the Advisor's obligations thereunder
may be limited by bankruptcy, insolvency, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights, and to
general principles of equity regardless of whether enforceability is considered
in a proceeding in equity or at law), except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws.
(f) The description of the Advisor in the Registration
Statement and the Prospectus (and any amendment or supplement thereto) complied
and comply in all material
16
16
respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act,
the Rules and Regulations and the Advisers Act Rules and Regulations and did not
and will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(g) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement to either of them),
the Advisor has not incurred any liability or obligation, direct or contingent,
or entered into any transaction, not in the ordinary course of business, that is
material to the Advisor or the Trust and that is required to be disclosed in the
Registration Statement or the Prospectus and there has not been any material
adverse change, or any development involving or which may reasonably be expected
to involve, a prospective material adverse change, in the condition (financial
or other), business, prospects, properties, net assets or results of operations
of the Advisor, whether or not arising in the ordinary course of business, or
which, in each case, could have a material adverse effect on the ability of the
Advisor to perform its obligations under this Agreement and the Management
Agreement.
(h) (i) The Advisor has such permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("permits") as are
necessary to own its properties and to conduct its business in the manner
described in the Prospectus (and any amendment thereto); (ii) the Advisor has
fulfilled and performed all its material obligations with respect to such
permits and no event has occurred which allows, or after notice or lapse of time
would allow, revocation or termination thereof or results in any other material
impairment of the rights of the Advisor under any such permit; and (iii) except
as described in the Prospectus (and any amendment or supplement thereto), none
of such permits contains any restriction that is materially burdensome to the
Advisor, except where the failure of (i), (ii), or (iii) to be accurate would
not, individually or in the aggregate, have a Material Adverse Effect on the
Advisor.
(i) Except as stated in this Agreement and in the Prospectus
(and in any amendment or supplement thereto), the Advisor has not taken, nor
will it take, directly or indirectly, any action designed to or which might
reasonably be expected to cause or result in stabilization or manipulation of
the price of any securities issued by the Trust to facilitate the sale or resale
of the Shares, and the Advisor is not aware of any such action taken or to be
taken by any affiliates of the Advisor.
8. Indemnification and Contribution. (a) The Trust and the
Advisor, jointly and severally, agree to indemnify and hold harmless you and
each other Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
from and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation), joint or several, arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in any Prepricing Prospectus or in the Registration Statement or
the Prospectus or in any amendment or supplement thereto, or arising out of or
based upon any omission or alleged omission to state
17
17
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which such statements
were made, not misleading, except insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which has been made therein or
omitted therefrom in reliance upon and in conformity with the information
relating to any Underwriter furnished in writing to the Trust by or on behalf of
any Underwriter expressly for use in connection therewith; provided, however,
that the indemnification contained in this paragraph (a) with respect to any
Prepricing Prospectus, Prospectus or Registration Statement (or any amendment or
supplement to any of the foregoing) shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) on
account of any such loss, claim, damage, liability or expense arising from the
sale of the Shares by such Underwriter to any person if a copy of the Prospectus
(or any amendment or supplement thereto) shall not have been delivered or sent
to such person within the time required by the 1933 Act and the 1933 Act Rules
and Regulations, and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such Prepricing
Prospectus was corrected in the Prospectus (or any amendment or supplement
thereto), provided that the Trust has delivered the Prospectus (or any amendment
or supplement thereto) to the several Underwriters in requisite quantity on a
timely basis to permit such delivery or sending. The foregoing indemnity
agreement shall be in addition to any liability which the Trust or the Advisor
may otherwise have.
(b) Any party that proposes to assert the right to be
indemnified under this Section 8 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 8, 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
(i) will not relieve it from any liability that it may have to any indemnified
party under the foregoing provision of this Section 8 unless, and only to the
extent that, such omission results in the forfeiture of substantive rights or
defenses by the indemnifying party and (ii) will not, in any event, relieve such
indemnifying party from any other obligation (other than pursuant to the
foregoing provision of this Section 8) it may have under this Agreement. If any
action, suit or proceeding shall be brought against any Underwriter or any
person controlling any Underwriter in respect of which indemnity may be sought
against the Trust or the Advisor, such Underwriter or such controlling person
shall promptly notify the Trust or the Advisor, and the Trust or the Advisor
shall assume the defense thereof, including the employment of counsel and
payment of all fees and expenses. Such Underwriter or any such controlling
person shall have the right to employ separate counsel in any such action, suit
or proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or such
controlling person unless (i) the Trust or the Advisor have agreed in writing to
pay such fees and expenses, (ii) the Trust and the Advisor have failed to assume
the defense and employ counsel, or (iii) the named parties to any such action,
suit or proceeding (including any impleaded parties) include both such
Underwriter or such controlling person and the Trust or the Advisor and such
Underwriter or such controlling person shall have been advised by its counsel
that representation of such indemnified party and the Trust or the Advisor by
the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such
18
18
representation by the same counsel has been proposed) due to actual or potential
differing interests between them (in which case the Trust and the Advisor shall
not have the right to assume the defense of such action, suit or proceeding on
behalf of such Underwriter or such controlling person). It is understood,
however, that the Trust and the Advisor shall, in connection with any one such
action, suit or proceeding or separate but substantially similar or related
actions, suits or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriters and controlling persons not
having actual or potential differing interests with you or among themselves,
which firm shall be designated in writing by the Representatives, and that all
such fees and expenses shall be reimbursed as they are incurred. The Trust and
the Advisor shall not be liable for any settlement of any such action, suit or
proceeding effected without their written consent (which consent shall not be
unreasonably withheld), but if settled with such written consent, or if there be
a final judgment for the plaintiff in any such action, suit or proceeding, the
Trust and the Advisor agree to indemnify and hold harmless any Underwriter, to
the extent provided in the preceding paragraph, and any such controlling person
from and against any loss, claim, damage, liability or expense by reason of such
settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Trust and the Advisor, their trustees,
directors, any officers who sign the Registration Statement, and any person who
controls the Trust or the Advisor within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act, to the same extent as the foregoing indemnity
from the Trust and the Advisor to each Underwriter, but only with respect to
information relating to such Underwriter furnished in writing by or on behalf of
such Underwriter expressly for use in the Registration Statement, the Prospectus
or any Prepricing Prospectus, or any amendment or supplement thereto. If any
action, suit or proceeding shall be brought against the Trust or the Advisor,
any of their trustees or directors, any such officer, or any such controlling
person based on the Registration Statement, the Prospectus or any Prepricing
Prospectus, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any Underwriter pursuant to this paragraph (c),
such Underwriter shall have the rights and duties given to the Trust and the
Advisor by paragraph (b) above (except that if the Trust or the Advisor shall
have assumed the defense thereof such Underwriter shall not be required to do
so, but may employ separate counsel therein and participate in the defense
thereof, but the fees and expenses of such counsel shall be at such
Underwriter's expense), and the Trust and the Advisor, their trustees and
directors, any such officer, and any such controlling person shall have the
rights and duties given to the Underwriters by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability which the
Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Trust and the Advisor on the one hand
19
19
(treated jointly for this purpose as one person) and the Underwriters on the
other hand from the offering of the Shares, or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Trust and the Advisor on the one hand
(treated jointly for this purpose as one person) and the Underwriters on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Trust and the
Advisor on the one hand (treated jointly for this purpose as one person) 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 underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Trust and the Advisor on the one hand
(treated jointly for this purpose as one person) and the Underwriters on the
other hand shall be determined by reference to, among other things, 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
and the Advisor on the one hand (treated jointly for this purpose as one person)
or by the Underwriters on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. 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 8(d), notify such
party or parties from whom contribution may be sought, but the omission so to
notify (i) 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 8(d),
unless such omission results in the forfeiture of substantive rights or defenses
by the party or parties from whom contribution is being sought and (ii) will
not, in any event, relieve the party or parties from whom contribution may be
sought from any other obligation (other than pursuant to this Section 8(d)) it
or they may have under this Agreement. Except for a settlement entered into
pursuant to the last sentence of Section 8(b) hereof, 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).
(e) The Trust, the Advisor and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 8 were
determined by a pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 8, no Underwriter
shall be required to contribute any amount in excess of the amount by which such
total price of the Shares underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution
from any
20
20
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 8 are several
in proportion to the respective numbers of Firm Shares set forth opposite their
names in Schedule I hereto (or such numbers of Firm Shares increased as set
forth in Section 11 hereof) and not joint.
(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
(g) Notwithstanding any other provisions in this Section 8, no
party shall be entitled to the benefit of any provision under this Agreement
which protects or purports to protect such person against any liability to the
Trust or its security holders to which such person would otherwise be subject by
reason of such person's willful misfeasance, bad faith, or gross negligence, in
the performance of such person's duties hereunder, or by reason of such person's
reckless disregard of such person's obligations and duties hereunder.
(h) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 8 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Trust and the Advisor set forth in this
Agreement shall remain operative and in full force and effect, regardless of (i)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Trust, the Advisor, their trustees, directors
or officers, or any person controlling the Trust or the Advisor, (ii) acceptance
of any Shares and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to any Underwriter or any person controlling any
Underwriter, or to the Trust, the Advisor, their trustees, directors or
officers, or any person controlling the Trust or the Advisor, shall be entitled
to the benefits of the indemnity, contribution, and reimbursement agreements
contained in this Section 8.
9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares and the Option
Shares, as the case may be, hereunder are subject to the following conditions:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the registration statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may commence,
the registration statement or such post-effective amendment shall have become
effective not later than 5:30 P.M., New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by you, and all
filings, if any, required by Rules 497 and 430A under the 1933 Act and the 1933
Act Rules and Regulations shall have been timely made; no stop order suspending
the effectiveness of the Registration Statement or order pursuant to Section
8(e) of the 1940 Act shall have been issued
21
21
and no proceeding for those purposes shall have been instituted or, to the
knowledge of the Trust, the Advisor or any Underwriter, threatened by the
Commission, and any request of the Commission for additional information (to be
included in the registration statement or the prospectus or otherwise) shall
have been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change or any development involving a
prospective change in or affecting the condition (financial or other), business,
prospects, properties, net assets, or results of operations of the Trust or the
Advisor not contemplated by the Prospectus, which in your opinion, as
Representatives of the several Underwriters, would materially adversely affect
the market for the Shares, or (ii) any event or development relating to or
involving the Trust or the Advisor or any officer or director of the Trust or
the Advisor which makes any statement made in the Prospectus untrue or which, in
the opinion of the Trust and its counsel or the Underwriters and their counsel,
requires the making of any addition to or change in the Prospectus in order to
state a material fact required by the 1933 Act, the 1940 Act or the Rules and
Regulations or any other law to be stated therein or necessary in order to make
the statements therein not misleading, if amending or supplementing the
Prospectus to reflect such event or development would, in your opinion, as
Representatives of the several Underwriters, materially adversely affect the
market for the Shares.
(c) You shall have received on the Closing Date an opinion of
Ropes & ▇▇▇▇, counsel for the Trust, dated the Closing Date and addressed to
you, as Representatives of the several Underwriters, in form and substance
satisfactory to you and to the effect that:
(i) The Trust has been duly organized and is validly
existing and in good standing as an unincorporated voluntary
association (commonly known as a Massachusetts business trust)
under the laws of the Commonwealth of Massachusetts and has
full power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and the Prospectus and to issue and
sell the Shares as contemplated by this Agreement;
(ii) The Shares have been duly authorized and, when
issued and delivered to the Underwriters against payment
therefor in accordance with the terms of this Agreement, will
be validly issued, fully paid and, except as set forth in the
Statement of Additional Information under "Shareholder
Liability," nonassessable and free of any preemptive or
similar rights; the form of certificates evidencing the Shares
complies with all requirements of Massachusetts law;
(iii) The Shares conform in all material respects
with the statements relating thereto contained in the
Prospectus under the caption "Description of Shares"; and the
Trust's authorized capitalization is as set forth in the
Prospectus under the caption "Description of Shares";
22
22
(iv) The Registration Statement is effective under
the 1933 Act and the 1940 Act; the filing of the Prospectus
pursuant to Rule 497(h) under the 1933 Act has been made
within the time required by Rule 497(h); and, to the best of
such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceeding for any such purpose is pending or
threatened by the Commission;
(v) The Trust is duly registered with the Commission
under the 1940 Act as a closed-end, non-diversified management
investment company and, to such counsel's knowledge, no order
of suspension or revocation of such registration pursuant to
Section 8(e) of the 1940 Act has been issued or proceedings
therefor initiated or threatened by the Commission;
(vi) The 1940 Act Notification, the Registration
Statement, the Prospectus and each amendment thereof or
supplement thereto (other than the financial statements and
schedules, the notes thereto and any schedules and other
financial data contained or incorporated by reference therein
or omitted therefrom, as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the 1933 Act, the 1940 Act and the
Rules and Regulations;
(vii) The statements made in the Prospectus
(including the Statement of Additional Information) under the
caption "Tax Matters", insofar as they constitute matters of
law or legal conclusions, have been reviewed by such counsel
and constitute accurate statements of any such matters of law
or legal conclusions in all material respects, and fairly
present the information called for with respect thereto by
Form N-2 under the 1940 Act;
(viii) To such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened
against the Trust, or to which the Trust or any of its
properties is subject, that are required to be described in
the Registration Statement or the Prospectus but are not
described as required;
(ix) To the best of such counsel's knowledge after
reasonable inquiry, there are no agreements, contracts,
indentures, leases or other instruments that are required to
be described in the Registration Statement or the Prospectus
or to be filed as an exhibit to the Registration Statement by
the 1933 Act or the 1940 Act or by the rules and regulations
thereunder which have not been so described or filed as an
exhibit or incorporated therein by reference as permitted by
the 1933 Act, the 1940 Act or the Rules and Regulations;
(x) Neither the issuance and sale of the Shares as
described in the Prospectus, the execution, delivery or
performance of this Agreement, or any of the Trust Agreements
by the Trust, nor the consummation by the Trust of the
transactions contemplated thereby (i) requires any consent,
approval, authorization
23
23
or other order of or registration or filing by the Trust with
the Commission, the NASD, any national securities exchange,
any arbitrator, any court, regulatory body, administrative
agency or other governmental body, agency or official (except
such as may have been obtained or made on or prior to the date
hereof and such as may be required for compliance with state
securities or Blue Sky laws) or conflicts or will conflict
with or constitutes or will constitute a breach of, or a
default under, the Declaration of Trust, the By-Laws or other
organizational documents of the Trust or (ii) (a) conflicts or
will conflict with or constitutes or will constitute a breach
of, or a default under, any agreement, indenture, lease or
other instrument to which the Trust is a party or by which it
or any of its properties may be bound and that is identified,
in an officer's certificate of the Trust, as material to the
business, financial condition, operations, properties or
prospects of the Trust (the "Agreements and Instruments"), (b)
violates or will violate any statute, law or regulation
(assuming compliance with state securities and Blue Sky laws),
except that such counsel may state that they express no
opinion as to the reasonableness or fairness of compensation
paid under the Management Agreement, (c) violates or will
violate any judgment, injunction, order or decree that is
applicable to the Trust or any of its properties and that is
known to such counsel or, or (d) will result in the creation
or imposition of any lien, charge or encumbrance upon any
property or assets of the Trust pursuant to the terms of the
Agreements and Instruments;
(xi) The Trust has the power and authority to enter into this
Agreement and each of the Trust Agreements, and this Agreement
and each of the Trust Agreements have been duly authorized,
executed and delivered by the Trust; assuming due
authorization, execution and delivery by the other parties
thereto, this Agreement and each of the Trust Agreements
constitutes the valid and binding obligation of the Trust
enforceable in accordance with its terms (except as rights to
indemnity and contribution in each such agreement may be
limited by Federal or state securities laws and except that
such counsel may state that they express no opinion as to the
reasonableness or fairness of compensation paid under the
Management Agreement), subject as to enforcement to
bankruptcy, insolvency, moratorium, reorganization and other
laws of general applicability relating to or affecting
creditors' rights and to general equity principles (regardless
of whether enforceability is considered in a proceeding in
equity or at law);
(xii) The Trust Agreements comply in all material
respects with all applicable provisions of the 1933 Act, the
Advisers Act, the 1940 Act, the 1933 Act Rules and
Regulations, the Advisers Act Rules and Regulations and the
1940 Act Rules and Regulations;
(xiii) The provisions of the Declaration of Trust, as
amended, and By-Laws of the Trust and the investment policies
and restrictions described in the Prospectus (including the
Statement of Additional Information) under the captions
"Investment Objectives and Policies" and "Miscellaneous
Investment Practices" comply with the requirements of the 1940
Act and the Rules and Regulations; and
(xiv) The Shares have been duly authorized for
listing, subject to official notice of issuance, on the AMEX.
24
24
Such counsel may also state, in substantially the same form,
that:
They have not independently verified the accuracy,
completeness or fairness of the statements made or the information contained in
the Registration Statement or the Prospectus, and, except for the statements
referred to in paragraphs (iii) and (vii) above and the information referred to
in paragraph (xiii) above, they are not passing upon and do not assume any
responsibility therefor. In the course of the preparation by the Trust of the
Registration Statement and the Prospectus, they have participated in discussions
with the Representatives and employees and officers of the Trust and the Advisor
and in discussions with the Trust's independent accountants, in which the
business and the affairs of the Trust and the Advisor and the contents of the
Registration Statement and the Prospectus were discussed. On the basis of
information that they have gained in the course of their representation of the
Trust in connection with its preparation of the Registration Statement and the
Prospectus and their participation in the discussions referred to above, no
facts have come to their attention that would lead them to believe that as of
its effective date, the Registration Statement contained any untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading, or
that as of the Closing Date the Prospectus contained an untrue statement of
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (in each case other than the financial
statements and schedules, the notes thereto and any schedules and other
financial data contained or incorporated by reference therein or omitted
therefrom, as to which they need express no opinion).
(d) You shall have received on the Closing Date an opinion of
the General Counsel, counsel for the Advisor, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, in form and
substance satisfactory to you and to the effect that:
(i) The Advisor is a corporation duly incorporated
and validly existing and in good standing under the laws of
The Commonwealth of Massachusetts and has full power and
authority to own, lease and operate its properties and to
conduct its business as described in the Registration
Statement and the Prospectus;
(ii) The Advisor is duly registered with the
Commission as an investment adviser under the Advisers Act of
1940, as amended (the "Advisers Act"), and is not prohibited
by the 1940 Act, the Advisers Act or the rules and regulations
thereunder from acting as the investment advisor to the Trust
pursuant to the Management Agreement as described in the
Prospectus;
(iii) To the best of such counsel's knowledge after
reasonable inquiry, there are no legal or governmental
proceedings pending or threatened against the Advisor, or to
which the Advisor or any of its properties is subject, that
are required to be described in the Registration Statement or
the Prospectus but are not described as required;
25
25
(iv) To the best of such counsel's knowledge after
reasonable inquiry, the Adviser is not in violation of the
Articles or By-Laws, nor is the Advisor in default under any
material agreement, indenture or instrument or in breach or
violation of any judgment, decree, order, rule or regulation
of any court or governmental or self-regulatory agency or
body;
(v) Neither the execution, delivery or performance of
the Underwriting Agreement, nor the consummation by the
Advisor of the transactions contemplated hereby or thereby,
(i) requires any consent, approval, authorization or other
order of or registration or filing by the Advisor with, the
Commission, the NASD, any national securities exchange, any
arbitrator, any court, regulatory body, administrative agency
or other governmental body, agency or official (except such as
may have been obtained or made on or prior to the date hereof
and such as may be required for compliance with state
securities or Blue Sky laws) or conflicts or will conflict
with or constitutes or will constitute a breach of, or a
default under, the Articles, the By-Laws or other
organizational documents of the Advisor or (ii) (a) conflicts
or will conflict with or constitutes or will constitute a
breach of, or a default under, any agreement, indenture, lease
or other instrument to which the Advisor is a party or by
which it or any of its properties may be bound (the
"Agreements and Instruments"), (b) violates or will violate
any statute, law or regulation (assuming compliance with state
securities and Blue Sky laws), (c) violates or will violate
any judgment, injunction, order or decree that is applicable
to the Advisor or any of its properties and that is known to
me or (d) will result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Advisor pursuant to the terms of the Agreements and
Instruments;
(vi) The Adviser has the corporate power and
authority to enter into this Agreement and the Management
Agreement, and this Agreement and the Management Agreement
have been duly authorized, executed and delivered by the
Advisor; assuming due authorization, execution and delivery by
the other parties thereto, the Underwriting Agreement and the
Management Agreement each constitutes the valid and binding
obligation of the Advisor enforceable in accordance with its
terms (except as rights to indemnity and contribution in this
Agreement and the Management Agreement may be limited by
Federal or state securities laws), subject as to enforcement
to bankruptcy, insolvency, moratorium, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles (regardless
of whether enforceability is considered in a proceeding in
equity or at law); and
(vii) The description of the Advisor (other than
statements as to the Advisor's investment decisions, beliefs
and strategies regarding the Trust's portfolio as to which
such counsel need express no opinion) in the Registration
Statement and the Prospectus (including the Statement of
Additional Information) does not contain an untrue statement
of a material fact or omit to state a material
26
26
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
Such counsel may also state, in substantially the same form,
that:
She has not independently verified the accuracy, completeness
or fairness of the statements made or the information contained in the
Registration Statement or the Prospectus, and, except for the information
referred to in paragraph (vii) above, she is not passing upon and does not
assume any responsibility therefor.
(e) You shall have received on the Closing Date an opinion of
▇▇▇▇▇ & Wood LLP, special New York counsel for the Trust, dated the Closing Date
and addressed to you, as Representatives of the several Underwriters, in form
and substance satisfactory to you and to the effect that:
(i) The statements in the Prospectus (including the
Statement of Additional Information) under the captions "Tax
Matters" and "Additional New York Tax Considerations," insofar
as they refer to statements of New York law or legal
conclusions involving matters of New York laws, have been
reviewed by us and are correct in all material respects; and
(ii) Such counsel shall also state that they have
participated in the preparation of the statements set forth in
the Registration Statement under the captions "Additional Risk
Considerations -- Certain Risks Associated with Investments in
New York Municipal Obligations" and "Appendix B -- Special
Considerations Relating to New York," the statements set forth
in the Prospectus under the caption "Additional Risk
Considerations -- Certain Risks Associated with Investments in
New York Municipal Obligations," and the statements set forth
in the Statement of Additional Information under the caption
"Appendix B -- Special Considerations Relating to New York,"
and that based upon the foregoing, no facts have come to their
attention which cause them to believe that the statements
contained in the Registration Statement under such captions
(except as to any financial statements or other financial data
included in the Registration Statement, as to which they
express no belief), as of its effective date, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements contained therein not misleading or that
the statements contained in the Prospectus and Statement of
Additional Information under such captions (except as to any
financial statements or other financial data included in the
Prospectus or any such amendment or supplement, as to which
they express no belief), as of its issue date and as of the
Closing Date or the Option Closing Date, as the case may be,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements contained therein, in the
light of the circumstances under which they were made, not
misleading.
27
27
(f) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated the Closing Date
and addressed to you, with respect to such matters as you may reasonably
request.
(g) You shall have received letters addressed to you and dated
the date hereof and the Closing Date from PricewaterhouseCoopers LLP,
independent certified public accountants, substantially in the forms heretofore
approved by the Representatives.
(h) (i) No order suspending the effectiveness of the
Registration Statement or prohibiting or suspending the use of the Prospectus
(or any amendment or supplement thereto) or any Prepricing Prospectus or any
sales material shall have been issued and no proceedings for such purpose or for
the purpose of commencing an enforcement action against the Trust, the Advisor
or, with respect to the transactions contemplated by the Prospectus (or any
amendment or supplement thereto) and this Agreement, any Underwriter, may be
pending before or, to the knowledge of the Trust, the Advisor or any Underwriter
or in the reasonable view of counsel to the Underwriters, shall be threatened or
contemplated by the Commission at or prior to the Closing Date and that any
request for additional information on the part of the Commission (to be included
in the Registration Statement, the Prospectus or otherwise) be complied with to
the satisfaction of the Underwriters; (ii) there shall not have been any change
in the capitalization of the Trust nor any material increase in the short-term
or long-term debt of the Trust (other than in the ordinary course of business)
from that set forth or contemplated in this Agreement, the Registration
Statement or the Prospectus (or any amendment or supplement thereto); (iii)
there shall not have been, subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus (or any
amendment or supplement to either of them), except as may otherwise be stated in
the Registration Statement and Prospectus (or any amendment or supplement to
either of them), any material adverse change in the condition (financial or
other), business, prospects, properties, net assets or results of operations of
the Trust or the Advisor; (iv) the Trust shall not have any liabilities or
obligations, direct or contingent (whether or not in the ordinary course of
business), that are material to the Trust, other than those reflected in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them); and (v) all the representations and warranties of the Trust and
the Advisor contained in this Agreement shall be true and correct on and as of
the date hereof and on and as of the Closing Date as if made on and as of the
Closing Date, and you shall have received a certificate of the Trust and the
Advisor, dated the Closing Date and signed by the chief executive officer and
the chief financial officer of each of the Trust and the Advisor (or such other
officers as are acceptable to you), to the effect set forth in this Section 9(h)
and in Section 9(i) hereof.
(i) Neither the Trust nor the Advisor shall have failed at or
prior to the Closing Date to have performed or complied in all material respects
with any of its agreements herein contained and required to be performed or
complied with by it hereunder at or prior to the Closing Date.
(j) The Shares have been duly authorized for listing, subject
to official notice of issuance, on the AMEX.
28
28
(k) The Trust and the Advisor shall have furnished or caused
to be furnished to you such further certificates and documents as you shall have
reasonably requested.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel.
Any certificate or document signed by any officer of the Trust
or the Advisor and delivered to you, or to your counsel, shall be deemed a
representation and warranty by the Trust or the Advisor, as applicable, to each
Underwriter as to the statements made therein.
10. Expenses. The Trust agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder: (i) the preparation, printing or reproduction, and
filing with the Commission of the registration statement (including financial
statements and exhibits thereto), each Prepricing Prospectus, the 1940 Act
Notification, the Prospectus and each amendment or supplement to any of them
(including, without limitation, the filing fees prescribed by the 1933 Act, the
1940 Act and the Rules and Regulations); (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, each Prepricing
Prospectus, the Prospectus, any sales material and all amendments or supplements
to any of them as may be reasonably requested for use in connection with the
offering and sale of the Shares; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Shares, including
any stamp taxes in connection with the original issuance and sale of the Shares;
(iv) the reproduction and delivery of this Agreement, any dealer agreements and
all other agreements or documents reproduced and delivered in connection with
the offering of the Shares; (v) the registration of the Shares under the 1934
Act and the listing of the Shares on the AMEX; (vi) the registration or
qualification of the Shares for offer and sale under the securities or blue sky
laws of the several states as provided in Section 5(g) hereof (including the
reasonable fees, expenses and disbursements of counsel for the Underwriters
relating to the preparation, printing or reproduction, and delivery of the
preliminary and supplemental blue sky memoranda and such registration and
qualification); (vii) the filing fees and the fees and expenses of counsel for
the Underwriters in connection with any filings required to be made with the
NASD; (viii) the transportation and other expenses incurred by or on behalf of
Trust representatives in connection with presentations to prospective purchasers
of the Shares; and (ix) the fees and expenses of the Trust's accountants and the
fees and expenses of counsel (including local and special counsel) for the
Trust. The Advisor and not the Trust agrees to pay an amount not greater than
$75,000 in reimbursement of certain expenses of the Underwriter in connection
with this Agreement.
11. Effective Date of Agreement. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto; or
(ii) if, at the time this Agreement is executed and delivered, it is necessary
for the registration statement or a post-effective amendment thereto to be
declared effective before the offering of the Shares may commence, when
notification of the effectiveness of the registration statement or such
post-effective amendment has been released by the Commission. Until such time as
this Agreement shall have
29
29
become effective, it may be terminated by the Trust, by notifying you, or by
you, as Representatives of the several Underwriters, by notifying the Trust.
If any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they are obligated to purchase hereunder on the
Closing Date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters are obligated but fail or refuse to purchase is not
more than one-tenth of the aggregate number of Shares which the Underwriters are
obligated to purchase on the Closing Date, each non-defaulting Underwriter shall
be obligated, severally, in the proportion which the number of Firm Shares set
forth opposite its name in Schedule I hereto bears to the aggregate number of
Firm Shares set forth opposite the names of all non-defaulting Underwriters or
in such other proportion as you may specify, to purchase the Shares which such
defaulting Underwriter or Underwriters are obligated, but fail or refuse, to
purchase. If any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they are obligated to purchase on the Closing Date
and the aggregate number of Shares with respect to which such default occurs is
more than one-tenth of the aggregate number of Shares which the Underwriters are
obligated to purchase on the Closing Date and arrangements satisfactory to you
and the Trust for the purchase of such Shares by one or more non-defaulting
Underwriters or other party or parties approved by you and the Trust are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Trust. In any
such case which does not result in termination of this Agreement, either you or
the Trust shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any such default of any such
Underwriter under this Agreement. The term "Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Trust,
purchases Shares which a defaulting Underwriter is obligated, but fails or
refuses, to purchase.
Any notice under this Section 11 may be given by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
12. Termination of Agreement. This Agreement shall be subject
to termination in your absolute discretion, without liability on the part of any
Underwriter to the Trust or the Advisor, by notice to the Trust or the Advisor,
if prior to the Closing Date or any Option Closing Date (if different from the
Closing Date and then only as to the Option Shares), as the case may be, (i)
trading in securities generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking activities
in New York shall have been declared by either federal or state authorities, or
(iii) there shall have occurred any outbreak or escalation of hostilities or
other international or domestic calamity, crisis or change in political,
financial or economic conditions, the effect of which on the financial markets
of the United States is to make it, in your judgment, impracticable or
inadvisable to commence or continue the offering of the Shares at the offering
price to the public set forth on the cover page of the Prospectus or to
30
30
enforce contracts for the resale of the Shares by the Underwriters. Notice of
such termination may be given to the Trust by telegram, telecopy or telephone
and shall be subsequently confirmed by letter.
13. Information Furnished by the Underwriters. The statements
set forth in the last sentence of the last paragraph of the front cover page in
the Prospectus, as well as, under the caption "Underwriting" in the Prospectus,
the names of the underwriters and numbers of Shares listed opposite such names
in the first paragraph, the last sentence of the second paragraph, the second
sentence of the ninth paragraph and the first sentence of the eleventh paragraph
constitute the only information relating to any Underwriter furnished to the
Fund in writing by or on behalf of the Underwriters through you as such
information is referred to herein, expressly for use in the Prospectus.
14. Miscellaneous. Except as otherwise provided in Sections 5,
11 and 12 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if to the Trust or the Advisor, at the
office of the Trust at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
Secretary; or (ii) if to you, as Representatives of the several Underwriters, to
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of
the several Underwriters, the Trust, the Advisor, their directors and officers,
and the other controlling persons referred to in Section 8 hereof and their
respective successors and assigns, to the extent provided herein, and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" nor the term "successors and assigns" as used in
this Agreement shall include a purchaser from any Underwriter of any of the
Shares in his status as such purchaser.
15. Notice. A copy of the Agreement and Declaration of Trust
of the Trust is on file with the Secretary of State of the Commonwealth of
Massachusetts, and notice is hereby given that this Agreement is executed on
behalf of the Trust by an officer or Trustee of the Trust in his or her capacity
as an officer or Trustee of the Trust and not individually and that the
obligations of or arising out of this instrument are not binding upon any of the
Trustees, officers or shareholders individually but are binding only upon the
assets and property of the Trust.
16. Applicable Law; Counterparts. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
[End of text]
31
31
Please confirm that the foregoing correctly sets forth the agreement
among the Trust, the Advisor and the several Underwriters.
Very truly yours,
COLONIAL NEW YORK INSURED
MUNICIPAL FUND
By: _____________________________
COLONIAL MANAGEMENT ASSOCIATES, INC.
By: _____________________________
Confirmed as of the date first above mentioned on behalf of themselves and the
other several Underwriters named in Schedule I hereto.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇▇▇▇▇ ▇▇▇▇▇▇ INCORPORATED
As Representatives of the Several Underwriters
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: _______________________________
Managing Director
32
SCHEDULE I
COLONIAL NEW YORK INSURED MUNICIPAL FUND
Number of
Underwriter Firm Shares
----------- -----------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.......................................
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.......................................
▇▇▇▇▇ ▇▇▇▇▇▇ Incorporated......................................
[Others].......................................................
Total..........................................................
===========