▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ California Intermediate Municipal Fund Inc.
(a Maryland corporation)
6,300,000 Shares of Common Stock
(Par Value $.0001 Per Share)
PURCHASE AGREEMENT
September 24, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
Quick & ▇▇▇▇▇▇, Inc.
▇▇▇▇▇ Fargo Securities, LLC
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co.
H&R Block Financial Advisors, Inc.
c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ California Intermediate Municipal Fund Inc., a
Maryland corporation (the "Fund"), the Fund's investment adviser, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Management Inc., a New York corporation ("NB Management"), and its
investment sub-adviser, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC, a Delaware limited liability
company ("NB LLC") (each, an "Adviser" and together, the "Advisers"), each
confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., Quick & ▇▇▇▇▇▇,
Inc., ▇▇▇▇▇ Fargo Securities, LLC, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Co. and H&R Block Financial Advisors, Inc. are acting as
representatives (in such capacity, the "Representatives"), with respect to the
issue and sale by the Fund and the purchase by the Underwriters, acting
severally and not jointly, of the respective number of shares of common stock,
par value $.0001 per share, of the Fund ("Common Shares") set forth in said
SCHEDULE A, and with respect to the grant by the Fund to the Underwriters,
acting severally and not jointly, of the option described in Section 2(b) hereof
to purchase all or any part of 945,000 additional Common Shares to cover
over-allotments, if any. The aforesaid 6,300,000 Common Shares (the "Initial
Securities") to be purchased by the Underwriters and all or any part of the
945,000 Common Shares subject to the option described in Section 2(b) hereof
(the "Option Securities") are hereinafter called, collectively, the
"Securities."
The Fund understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
The Fund has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form N-2 (No. 333-97455 and No.
811-21167) covering the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses, and a notification on Form N-8A of registration of
the Fund as an investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"), and the rules and regulations of the Commission under
the 1933 Act and the 1940 Act (the "Rules and Regulations"). Promptly after
execution and delivery of this Agreement, the Fund will either (i) prepare and
file a prospectus in accordance with the provisions of Rule 430A ("Rule 430A")
of the Rules and Regulations and paragraph (c) or (h) of Rule 497 ("Rule 497")
of the Rules and Regulations or (ii) if the Fund has elected to rely upon Rule
434 ("Rule 434") of the Rules and Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 497. The
information included in any such prospectus or in any such Term Sheet, as the
case may be, that was omitted from such registration statement at the time it
became effective but that is deemed to be part of such registration statement at
the time it became effective, if applicable, (a) pursuant to paragraph (b) of
Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to paragraph
(d) of Rule 434 is referred to as "Rule 434 Information." Each prospectus used
before such registration statement became effective, and any prospectus that
omitted, as applicable, the Rule 430A Information or the Rule 434 Information,
that was used after such effectiveness and prior to the execution and delivery
of this Agreement, is herein called a "preliminary prospectus." Such
registration statement, including the exhibits thereto and schedules thereto at
the time it became effective and including the Rule 430A Information and the
Rule 434 Information, as applicable, is herein called the "Registration
Statement." Any registration statement filed pursuant to Rule 462(b) of the
Rules and Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. The final prospectus in the form
first furnished to the Underwriters for use in connection with the offering of
the Securities is herein called the "Prospectus." If Rule 434 is relied on, the
term "Prospectus" shall refer to the preliminary prospectus dated August 30,
2002 together with the Term Sheet and all references in this Agreement to the
date of the Prospectus shall mean the date of the Term Sheet. For purposes of
this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) REPRESENTATIONS AND WARRANTIES BY THE FUND AND THE ADVISERS. The
Fund and the Advisers jointly and severally represent and warrant to each
Underwriter as of the date hereof, as of the Closing Time referred to in Section
2(c) hereof, and as of each Date of Delivery (if any) referred to in Section
2(b) hereof, and agree with each Underwriter, as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act, or order of
suspension or revocation of registration pursuant to Section 8(e) of
the 1940 Act, and no proceedings for any such purpose have been
instituted or are pending or, to the knowledge of the Fund or the
Advisers, are contemplated by the Commission, and any request on the
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part of the Commission for additional information has been complied
with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), the Registration Statement,
the Rule 462(b) Registration Statement, the notification on Form N-8A
and any amendments and supplements thereto complied and will comply in
all material respects with the requirements of the 1933 Act, the 1940
Act and the 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 not misleading. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any such amendment
or supplement was issued and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), included or will
include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. If Rule 434 is used, the Fund will comply with the
requirements of Rule 434 and the Prospectus shall not be "materially
different", as such term is used in Rule 434, from the prospectus
included in the Registration Statement at the time it became effective.
The representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Fund in writing by any Underwriter through ▇▇▇▇▇▇▇
▇▇▇▇▇ expressly for use in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 497 under the 1933 Act,
complied when so filed in all material respects with the Rules and
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted
by Regulation S-T.
If a Rule 462(b) Registration Statement is required in connection
with the offering and sale of the Securities, the Fund has complied or
will comply with the requirements of Rule 111 under the 1933 Act
Regulations relating to the payment of filing fees thereof.
(ii) INDEPENDENT ACCOUNTANTS. The accountants who certified the
statement of assets and liabilities included in the Registration
Statement are independent public accountants as required by the 1933
Act and the Rules and Regulations.
(iii) FINANCIAL STATEMENTS. The statement of assets and
liabilities included in the Registration Statement and the Prospectus,
together with the related notes, presents fairly in accordance with
generally accepted accounting principals ("GAAP") in all material
respects the financial position of the Fund at the date indicated; said
statement has been prepared in conformity with GAAP.
(iv) EXPENSE SUMMARY. The information set forth in the Prospectus
in the Fee Table has been prepared in accordance in all material
respects with the requirements of Form N-2 and to the extent estimated
or projected, such estimates or projections are reasonably believed to
be attainable and reasonably based.
(v) NO MATERIAL ADVERSE CHANGE. Since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no
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material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Fund,
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"), (B) there have been no transactions entered into by
the Fund, other than those in the ordinary course of business, which
are material with respect to the Fund, and (C) there has been no
dividend or distribution of any kind declared, paid or made by the Fund
on any class of its capital stock.
(vi) GOOD STANDING OF THE FUND. The Fund has been duly organized
and is validly existing as a corporation in good standing under the
laws of the State of Maryland and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under this Agreement; and the Fund is duly qualified as a
foreign corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) NO SUBSIDIARIES. The Fund has no subsidiaries.
(viii) INVESTMENT COMPANY STATUS. The Fund is duly registered with
the Commission under the 1940 Act as a closed-end non-diversified
management investment company, and no order of suspension or revocation
of such registration has been issued or proceedings therefor initiated
or, to the knowledge of the Fund, threatened by the Commission.
(ix) OFFICERS AND DIRECTORS. No person is serving or acting as an
officer, director or investment adviser of the Fund except in
accordance with the provisions of the 1940 Act and the Rules and
Regulations and no person is serving or acting as an investment adviser
of the Fund except in accordance with the provisions of 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"). Except as disclosed in the
Registration Statement or the Prospectus (or any amendment or
supplement to either of them), to the knowledge of the Fund after due
inquiry, no director of the Fund is an "interested person" (as defined
in the ▇▇▇▇ ▇▇▇) of the Fund or an "affiliated person" (as defined in
the ▇▇▇▇ ▇▇▇) of any Underwriter.
(x) CAPITALIZATION. The authorized shares of common stock of the
Fund are as set forth in the Prospectus as of the date thereof under
the caption "Description of Shares." All issued and outstanding shares
of common stock of the Fund have been duly authorized and validly
issued and are fully paid and non-assessable and have been offered and
sold or exchanged by the Fund in compliance with all applicable laws
(including, without limitation, federal and state securities laws);
none of the outstanding shares of common stock of the Fund were issued
in violation of the preemptive or other similar rights of any
securityholder of the Fund.
(xi) AUTHORIZATION AND DESCRIPTION OF SECURITIES. The Securities
to be purchased by the Underwriters from the Fund have been duly
authorized for issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered by the Fund pursuant to this
Agreement against payment of the consideration set forth herein, will
be validly issued and fully paid and non-assessable. The Common Shares
conform in all material respects to all statements relating thereto
contained in the Prospectus and such description conforms in all
material respects to the rights set forth in the instruments defining
the same; and the issuance of the Securities is not subject to the
preemptive or other similar rights of any securityholder of the Fund.
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(xii) AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Fund.
(xiii) ABSENCE OF DEFAULTS AND CONFLICTS. The Fund is not in
violation of its articles of incorporation or by-laws, or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which it is a party or by which it is bound, or to which
any of the property or assets of the Fund is subject (collectively,
"Agreements and Instruments") except for such violations or defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the Management Agreement,
the Sub-Advisory Agreement, the Administration Agreement, the Custodian
Agreement and the Transfer Agent and Service Agreement referred to in
the Registration Statement (as used herein, the "Management Agreement,"
the "Sub-Advisory Agreement, the "Administration Agreement," the
"Custodian Agreement" and the "Transfer Agency Agreement,"
respectively) and the consummation of the transactions contemplated
herein and in the Registration Statement (including the issuance and
sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectus under the caption "Use of
Proceeds") and compliance by the Fund with its obligations hereunder
have been duly authorized by all necessary corporate action and do not
and will not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Fund pursuant to, the Agreements and Instruments (except
for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor
will such action result in any violation of the provisions of the
articles of incorporation or by-laws of the Fund or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Fund or any of its assets, properties or
operations (except for such violations that would not result in a
Material Adverse Effect). As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Fund.
(xiv) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Fund or the Advisers, threatened, against or
affecting the Fund, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
would reasonably be expected to result in a Material Adverse Effect, or
which would reasonably be expected to materially and adversely affect
the properties or assets of the Fund or the consummation of the
transactions contemplated in this Agreement or the performance by the
Fund of its obligations hereunder. The aggregate of all pending legal
or governmental proceedings to which the Fund is a party or of which
any of its property or assets is the subject which are not described in
the Registration Statement, including ordinary routine litigation
incidental to the business, would not reasonably be expected to result
in a Material Adverse Effect.
(xv) ACCURACY OF EXHIBITS. There are no contracts or documents
which are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits thereto by the 1933 Act, the 1940
Act or by the Rules and Regulations which have not been so described
and filed as required.
5
(xvi) POSSESSION OF INTELLECTUAL PROPERTY. The Fund owns, has the
right to use or possesses, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the
business now operated by the Fund, and the Fund has not received any
notice or is not otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of
the Fund therein, and which infringement or conflict (if the subject of
any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xvii) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Fund of its
obligations hereunder, in connection with the offering, issuance or
sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except such as have been
already obtained or as may be required under the 1933 Act, the 1940
Act, the Securities Exchange Act of 1934, as amended (the "1934 Act"),
or under the rules of the National Association of Securities Dealers,
Inc. ("NASD"), or state securities laws.
(xviii) POSSESSION OF LICENSES AND PERMITS. The Fund possesses
such permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies
necessary to operate its properties and to conduct the business as
contemplated in the Prospectus; the Fund is in compliance with the
terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not have a Material Adverse Effect;
and the Fund has not received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xix) ADVERTISEMENTS. Any advertising, sales literature or other
promotional material (including "prospectus wrappers", "broker kits,"
"road show slides" and "road show scripts") authorized in writing by or
prepared by the Fund or the Advisers used in connection with the public
offering of the Securities (collectively, "Sales Material") does 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. Moreover, all Sales Material complied and will
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.
(xx) SUBCHAPTER M. The Fund intends to direct the investment of
the proceeds of the offering described in the Registration Statement in
such a manner as to comply with the requirements of Subchapter M of the
Internal Revenue Code of 1986, as amended ("Subchapter M of the Code"
and the "Code," respectively), and intends to qualify as a regulated
investment company under Subchapter M of the Code.
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(xxi) MATERIAL AGREEMENTS. This Agreement, the Management
Agreement, the Administration Agreement, the Custodian Agreement and
the Transfer Agency Agreement have each been duly authorized by all
requisite action on the part of the Fund, executed and delivered by the
Fund, as of the dates noted therein and each complies with all
applicable provisions of the 1940 Act. Assuming due authorization,
execution and delivery by the other parties thereto with respect to the
Administration Agreement, the Custodian Agreement and the Transfer
Agency Agreement, each of the Management Agreement, the Administration
Agreement, the Custodian Agreement and the Transfer Agency Agreement
constitutes a valid and binding agreement of the Fund, enforceable
against it in accordance with its terms, except as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) or an implied covenant of good faith
and fair dealing.
(xxii) REGISTRATION RIGHTS. There are no persons with registration
rights or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the
Fund under the 1933 Act.
(b) REPRESENTATIONS AND WARRANTIES BY THE ADVISERS. The Advisers
represent and warrant to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof as follows:
(i) GOOD STANDING OF THE ADVISERS. NB Management has been duly
organized and is validly existing and in good standing as a corporation
under the laws of the State of New York, and NB LLC has been duly
organized and is validly existing and in good standing as a limited
liability company under the laws of the State of Delaware with full
corporate or limited liability company, respectively, power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and each is duly qualified as a
foreign corporation or limited liability company, respectively, to
transact business and is in good standing in each other jurisdiction in
which such qualification is required except as would not, individually
or in the aggregate, result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of such Adviser, whether or not arising in the
ordinary course of business (an "Adviser Material Adverse Effect").
(ii) INVESTMENT ADVISER STATUS. Each of the Advisers is duly
registered and in good standing with the Commission as an investment
adviser under the Advisers Act, and is not prohibited by the Advisers
Act or the 1940 Act, or the rules and regulations under such acts, from
acting under the Management Agreement for the Fund as contemplated by
the Prospectus.
(iii) CAPITALIZATION. Each of the Advisers has the financial
resources available to it necessary for the performance of its services
and obligations as contemplated in the Prospectus.
(iv) AUTHORIZATION OF AGREEMENTS; ABSENCE OF DEFAULTS AND
CONFLICTS. This Agreement, the Management Agreement, the Sub-Advisory
Agreement and the Additional Compensation Agreement have each been duly
authorized, executed and delivered by each Adviser that is a party
thereto, and (assuming the due authorization, execution and delivery by
each of the parties thereto) the Management Agreement, the Sub-Advisory
Agreement and the Additional Compensation Agreement each constitute a
valid and binding obligation of each respective Adviser that is a party
thereto, enforceable against it in accordance with its terms, except as
affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) or an implied
covenant of good faith and fair dealing; and neither the execution and
7
delivery of this Agreement, the Management Agreement, the Sub-Advisory
Agreement and the Additional Compensation Agreement nor the performance
by either of the Advisers of its obligations hereunder or thereunder
will conflict with, or result in a breach of any of the terms and
provisions of, or constitute, with or without the giving of notice or
lapse of time or both, a default under, (i) any agreement or instrument
to which either Adviser is a party or by which it is bound, (ii) the
certificate of incorporation, the by-laws or other organizational
documents of the Advisers, or (iii) to each Adviser's knowledge, any
law, order, decree, rule or regulation applicable to it of any
jurisdiction, court, federal or state regulatory body, administrative
agency or other governmental body, stock exchange or securities
association having jurisdiction over the Advisers or their respective
properties or operations other than, in clauses (i) and (iii), any
conflict, breach or default that would not, individually or in the
aggregate, reasonably be expected to result in an Adviser Material
Adverse Effect; and no consent, approval, authorization or order of any
court or governmental authority or agency is required for the
consummation by the Advisers of the transactions contemplated by this
Agreement, the Management Agreement or the Sub-Advisory Agreement,
except as have been obtained or will have been obtained prior to the
Closing Time or may be required under the 1933 Act, the 1940 Act, the
1934 Act or state securities laws.
(v) NO MATERIAL ADVERSE CHANGE. Since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, there has not occurred
any event which would reasonably be expected to have a material adverse
effect on the ability of either Adviser to perform its respective
obligations under this Agreement and the respective Management
Agreement and Sub-Advisory Agreement to which it is a party.
(vi) ABSENCE OF PROCEEDINGS. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge
of the Advisers, threatened against or affecting the Advisers or any
"affiliated person" of the Advisers (as such term is defined in the
▇▇▇▇ ▇▇▇) or any partners, directors, officers or employees of the
foregoing, whether or not arising in the ordinary course of business,
which would reasonably be expected to result in any Adviser Material
Adverse Effect or materially and adversely affect the ability of the
Advisers to function as an investment adviser with respect to the Fund
or perform their obligations under the Management Agreement or the
Sub-Advisory Agreement, or which is required to be disclosed in the
Registration Statement and the Prospectus.
(vii) Absence of Violation or Default. Each Adviser is not in
violation of its certificate of incorporation, by-laws or other
organizational documents or in default under any agreement, indenture
or instrument, except for such violations or defaults that would not
result in an Adviser Material Adverse Effect.
(c) OFFICER'S CERTIFICATES. Any certificate signed by any officer of
the Fund or the Advisers delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Fund or the
Advisers, as the case may be, to each Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) INITIAL SECURITIES. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Fund agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Fund, at the price per share set forth in SCHEDULE B, the number of Initial
Securities set forth in SCHEDULE A opposite the name of such Underwriter, plus
8
any additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) OPTION SECURITIES. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Fund hereby grants an option to the Underwriters, severally and
not jointly, to purchase up to an additional 945,000 Common Shares in the
aggregate at the price per share set forth in SCHEDULE B, less an amount per
share equal to any dividends or distributions declared by the Fund and payable
on the Initial Securities but not payable on the Option Securities. The option
hereby granted will expire 45 days after the date hereof and may be exercised in
whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Representatives to the
Fund setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time and date of delivery (a "Date
of Delivery") shall be determined by the Representatives, but shall not be later
than seven full business days and no earlier than three business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined. If the option is exercised as to all or any portion of the
Option Securities, each of the Underwriters, acting severally and not jointly,
will purchase that proportion of the total number of Option Securities then
being purchased which the number of Initial Securities set forth in SCHEDULE A
opposite the name of such Underwriter bears to the total number of Initial
Securities, subject in each case to such adjustments as ▇▇▇▇▇▇▇ ▇▇▇▇▇ in its
discretion shall make to eliminate any sales or purchases of a fractional number
of Option Securities.
(c) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
▇▇▇▇▇▇▇▇ Chance US LLP, or at such other place as shall be agreed upon by the
Representatives and the Fund, at 10:00 A.M. (Eastern time) on the third (fourth,
if the pricing occurs after 4:30 P.M. (Eastern time) on any given day) business
day after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date
as shall be agreed upon by the Representatives and the Fund (such time and date
of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Fund, on each Date of Delivery as specified in the notice from the
Representatives to the Fund.
Payment shall be made to the Fund by wire transfer of immediately
available funds to a bank account designated by the Fund, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) DENOMINATIONS; REGISTRATION. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at least
one full business day before the Closing Time or the relevant Date of Delivery,
as the case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in the City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
9
as the case may be.
SECTION 3. Covenants.
(a) The Fund covenants with each Underwriter as follows:
(i) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION
REQUESTS. The Fund, subject to Section 3(a)(ii), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify
the Representatives immediately, and confirm the notice in writing, (i)
when any post-effective amendment to the Registration Statement shall
become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Fund will promptly effect the
filings necessary pursuant to Rule 497 and will take such steps as it
deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 497 was received for filing by the
Commission and, in the event that it was not, it will promptly file
such prospectus. The Fund will make every reasonable effort to prevent
the issuance of any stop order, or order of suspension or revocation of
registration pursuant to Section 8(e) of the 1940 Act, and, if any such
stop order or order of suspension or revocation of registration is
issued, to obtain the lifting thereof at the earliest possible moment.
(ii) FILING OF AMENDMENTS. The Fund will give the Representatives
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any
Term Sheet or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, will furnish the Representatives with
copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use
any such document to which the Representatives or counsel for the
Underwriters shall object.
(iii) DELIVERY OF REGISTRATION STATEMENTS. The Fund has furnished
or will deliver to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein) and
signed copies of all consents and certificates of experts, and will
also deliver to the Representatives, without charge, a conformed copy
of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The copies of
the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
(iv) DELIVERY OF PROSPECTUSES. The Fund has delivered to each
Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter reasonably requested, and the Fund
hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Fund will furnish to each Underwriter, without charge,
10
during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the Prospectus
(as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(v) CONTINUED COMPLIANCE WITH SECURITIES LAWS. If at any time when
a prospectus is required by the 1933 Act to be delivered in connection
with sales of the Securities, any event shall occur or condition shall
exist as a result of which it is necessary, in the reasonable opinion
of counsel for the Underwriters or for the Fund, to amend the
Registration Statement or amend or supplement the Prospectus in order
that the Prospectus will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or
if it shall be necessary, in the opinion of such counsel, at any such
time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or
the Rules and Regulations, the Fund will promptly prepare and file with
the Commission, subject to Section 3(a)(ii), such amendment or
supplement as may be necessary to correct such statement or omission or
to make the Registration Statement or the Prospectus comply with such
requirements, and the Fund will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may
reasonably request.
(vi) BLUE SKY QUALIFICATIONS. The Fund will cooperate with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of
the United States as the Representatives may designate and to maintain
such qualifications so long as required for the distribution of the
Securities; provided, however, that the Fund shall not be obligated to
file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not
otherwise so subject.
(vii) RULE 158. The Fund will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to
its securityholders as soon as practicable an earnings statement for
the purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(viii) USE OF PROCEEDS. The Fund will use the net proceeds
received by it from the sale of the Securities in the manner specified
in the Prospectus under "Use of Proceeds".
(ix) LISTING. The Fund will use its best efforts to effect the
listing of the Securities on the American Stock Exchange ("AMEX").
(x) RESTRICTION ON SALE OF SECURITIES. During a period of 180 days
from the date of the Prospectus, the Fund will not, without the prior
written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, (A) directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of Common
Shares or any securities convertible into or exercisable or
exchangeable for Common Shares or file any registration statement under
the 1933 Act with respect to any of the foregoing or (B) enter into any
swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of
ownership of the Common Shares, whether any such swap or transaction
described in clause (A) or (B) above is to be settled by delivery of
11
Common Shares or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (1) the Securities to be sold
hereunder or (2) Common Shares issued pursuant to any dividend
reinvestment plan.
(xi) REPORTING REQUIREMENTS. The Fund, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission
pursuant to the 1940 Act and the 1934 Act within the time periods
required by the 1940 Act and the Rules and Regulations and the 1934 Act
and the rules and regulations of the Commission thereunder,
respectively.
(xii) SUBCHAPTER M. The Fund will use its best efforts to maintain
its qualification as a regulated investment company under Subchapter M
of the Code.
(xiii) NO MANIPULATION OF MARKET FOR SECURITIES. Except for the
authorization of actions permitted to be taken by the Underwriters as
contemplated herein or in the Prospectus, the Fund will not (a) take,
directly or indirectly, any action designed to cause or to result in,
or that would reasonably be expected to constitute, the stabilization
or manipulation of the price of any security of the Fund to facilitate
the sale or resale of the Securities, and (b) until the Closing Date,
or the Date of Delivery, if any, (i) sell, bid for or purchase the
Securities or pay any person any compensation for soliciting purchases
of the Securities or (ii) pay or agree to pay to any person any
compensation for soliciting another to purchase any other securities of
the Fund .
(xiv) RULE 462(b) REGISTRATION STATEMENT. If the Fund elects to
rely upon Rule 462(b), the Fund shall file a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) by 10:00
P.M., Washington, D.C. time, on the date of this Agreement, and the
Fund shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the ▇▇▇▇ ▇▇▇.
(b) Each Adviser covenants with each Underwriter that for a period of
180 days from the date of the Prospectus, each Adviser will not, without your
prior written consent which consent shall not be unreasonably withheld, act as
investment adviser to any other closed end registered investment company, other
than ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Intermediate Municipal Fund Inc. and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ New
York Intermediate Municipal Fund Inc., having an investment objective, policies
and restrictions substantially similar to those of the Fund.
SECTION 4. Payment of Expenses.
(a) EXPENSES. The Fund will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters, (iv) the fees and
disbursements of the Fund's counsel, accountants and other advisors, (v) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(a)(vi) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith,
(vi) the printing and delivery to the Underwriters of copies of each preliminary
12
prospectus, Prospectus and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the Underwriters of copies of the Blue Sky
Survey and any supplement thereto, (viii) the fees and expenses of any transfer
agent or registrar for the Securities, (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the NASD of the terms of the sale of the Securities and
marketing materials, (x) the fees and expenses incurred in connection with the
listing of the Securities on the AMEX, and (xi) the printing of any Sales
Material. Also, the Fund shall pay to ▇▇▇▇▇▇▇ ▇▇▇▇▇, on behalf of the
Underwriters, $.005 per share of the securities purchased pursuant to this
agreement as partial reimbursement of expenses incurred in connection with the
offering. NB Management shall pay organizational expenses and offering costs
(other than sales load) of the Fund that exceed $.03 per share.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section 9(a)
hereof, the Fund or the Advisers shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations.
The obligations of the several Underwriters hereunder are subject to
the accuracy of the representations and warranties of the Fund and the Advisers
contained in Section 1 hereof or in certificates of any officer of the Fund or
the Advisers delivered pursuant to the provisions hereof, to the performance by
the Fund and the Advisers of their respective covenants and other obligations
hereunder, and to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act, no notice or
order pursuant to Section 8(e) of the 1940 Act shall have been issued, and no
proceedings with respect to either shall have been initiated or threatened by
the Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing the Rule 430A Information
shall have been filed with the Commission in accordance with Rule 497 (or a
post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A) or, if the
Fund has elected to rely upon Rule 434, a Term Sheet shall have been filed with
the Commission in accordance with Rule 497.
(b) OPINIONS OF COUNSEL FOR FUND AND THE ADVISERS. At Closing Time, the
Representatives shall have received the favorable opinions, dated as of Closing
Time, of ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ LLP, counsel for the Fund and of ▇▇▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇▇, counsel to the Advisers, in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of such
letters for each of the other Underwriters as to the matters set forth in
EXHIBIT A and EXHIBIT B hereto.
(c) OPINION OF SPECIAL CALIFORNIA COUNSEL FOR THE FUND. At Closing
Time, the Representatives shall have received the favorable opinions, dated as
of Closing Time, of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, special California counsel
for the Fund, in form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed and reproduced copies of such letters for
each of the other Underwriters as to the matters set forth in EXHIBIT C hereto
and to such further effect as counsel to the Underwriters may reasonably
request.
(d) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters
13
with respect to the matters set forth in clauses (i), (ii), (iv), (v) (solely as
to preemptive or other similar rights arising by operation of law or under the
articles or by-laws of the Fund), (vii), (x), (xi) (solely as to the information
in the Prospectus under "Description of Capital Stock"), (xvi), (xvii) and the
penultimate paragraph of EXHIBIT A hereto. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other than the
law of the State of New York and the federal law of the United States, upon the
opinions of counsel satisfactory to the Representatives. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Fund and
certificates of public officials.
(e) OPINION OF SPECIAL COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the
Underwriters, in form and substance satisfactory to counsel for the
Underwriters.
(f) OFFICERS' CERTIFICATES. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Fund, whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the President or a Vice
President of the Fund and of the chief financial or chief accounting officer of
the Fund and of the President or a Vice President of each of the Advisers, dated
as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Sections 1(a) and (b)
hereof are true and correct with the same force and effect as though expressly
made at and as of Closing Time, (iii) each of the Fund and the Advisers,
respectively, has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement, or order
of suspension or revocation of registration pursuant to Section 8(e) of the 1940
Act, has been issued and no proceedings for any such purpose have been
instituted or are pending or, to the knowledge of the Fund or the Advisers, are
contemplated by the Commission.
(g) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of this
Agreement, the Representatives shall have received from Ernst & Young LLP a
letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(h) BRING-DOWN COMFORT LETTER. At Closing Time, the Representatives
shall have received from Ernst & Young LLP a letter, dated as of Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (g) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time.
(i) APPROVAL OF LISTING. At Closing Time, the Securities shall have
been approved for listing on the AMEX, subject only to official notice of
issuance.
(j) EXECUTION OF ADDITIONAL COMPENSATION AGREEMENT. At Closing Time,
▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received the Additional Compensation Agreement, dated
the date of the Closing Time, as executed by NB Management.
(k) NO OBJECTION. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
14
(l) MATERIAL AGREEMENTS. At Closing Time, the Representatives shall
have received a certificate from the President or a Vice President of each of
the Advisers, dated as of Closing Time, to the effect that EXHIBIT D is a true
and complete list of all contracts, indentures, mortgages, deeds of trust, loan
or credit agreements, notes, leases or other agreements or instruments of each
of the Advisers that are material to the business or operations of each of the
Advisers.
(m) CONDITIONS TO PURCHASE OF OPTION SECURITIES. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Fund contained herein and the statements in any certificates furnished by
the Fund hereunder shall be true and correct as of each Date of Delivery and, at
the relevant Date of Delivery, the Representatives shall have received:
(i) OFFICERS' CERTIFICATES. Certificates, dated such Date of
Delivery, of the President or a Vice President of the Fund and of the
chief financial or chief accounting officer of the Fund and of the
President or a Vice President of each of the Advisers confirming that
the information contained in the certificate delivered by each of them
at the Closing Time pursuant to Section 5(f) hereof remains true and
correct as of such Date of Delivery.
(ii) OPINIONS OF COUNSEL FOR THE FUND AND THE ADVISERS. The
favorable opinions of ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ LLP, counsel for the
Fund and of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel to the Advisers, dated
such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(b) hereof.
(iii) OPINION OF SPECIAL CALIFORNIA COUNSEL FOR THE FUND. The
favorable opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, special California
counsel for the Fund, in form and substance satisfactory to counsel for
the Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchases on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(c) hereof.
(iv) OPINION OF COUNSEL FOR THE UNDERWRITERS. The favorable
opinion of ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Underwriters, dated
such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(d) hereof.
(v) OPINION OF SPECIAL COUNSEL FOR THE UNDERWRITERS. The favorable
opinion of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the
Underwriters, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchases on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(e) hereof.
(vi) BRING-DOWN COMFORT LETTER. A letter from Ernst & Young LLP,
in form and substance satisfactory to the Representatives and dated
such Date of Delivery, substantially in the same form and substance as
the letter furnished to the Representatives pursuant to Section 5(h)
hereof, except that the "specified date" in the letter furnished
pursuant to this paragraph shall be a date not more than five days
prior to such Date of Delivery.
(vii) MATERIAL AGREEMENTS. A certificate, dated such Date of
Delivery, of the President or a Vice President of each of the Advisers,
to the effect that the schedule attached thereto is a true and complete
list of all contracts, indentures, mortgages, deeds of trust, loan or
credit agreements, notes, leases or other agreements or instruments of
15
each of the Advisers that are material to the business or operations of
each of the Advisers.
(n) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Fund and the Advisers in connection with the organization and
registration of the Fund under the 1940 Act and the issuance and sale of the
Securities as herein contemplated shall be reasonably satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
(o) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option
Securities, on a Date of Delivery which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the Fund at
any time at or prior to Closing Time or such Date of Delivery, as the case may
be, and such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 1, 6, 7, 8 and 13
shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) INDEMNIFICATION OF UNDERWRITERS. The Fund and the Advisers, jointly
and severally, agree to indemnify and hold harmless each 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, and any director, officer, employee
or affiliate thereof as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(e) below) any such settlement is effected
with the prior written consent of the Fund and the Advisers; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇
▇▇▇▇▇), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
16
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Fund or the
Advisers by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto); and
provided further that the Fund or the Advisers will not be liable to any
Underwriter with respect to any Prospectus to the extent that the Fund or the
Advisers shall sustain the burden of proving that any such loss, liability,
claim, damage or expense resulted from the fact that such Underwriter, in
contravention of a requirement of this Agreement or applicable law, sold
Securities to a person to whom such Underwriter failed to send or give, at or
prior to the Closing Time, a copy of the final Prospectus, as then amended or
supplemented if: (i) the Company has previously furnished copies thereof
(sufficiently in advance of the Closing Time to allow for distribution by the
Closing Time) to the Underwriter and the loss, liability, claim, damage or
expense of such Underwriter resulted from an untrue statement or omission of a
material fact contained in or omitted from the preliminary Prospectus which was
corrected in the final Prospectus as, if applicable, amended or supplemented
prior to the Closing Time and such final Prospectus was required by law to be
delivered at or prior to the written confirmation of sale to such person and
(ii) such failure to give or send such final Prospectus by the Closing Time to
the party or parties asserting such loss, liability, claim, damage or expense
would have constituted a defense to the claim asserted by such person.
(b) INDEMNIFICATION OF FUND, ADVISERS, DIRECTORS, DIRECTORS AND
OFFICERS. Each Underwriter severally agrees to indemnify and hold harmless the
Fund and the Advisers, their respective directors and officers, each of the
Fund's officers who signed the Registration Statement, and each person, if any,
who controls the Fund or the Advisers within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Fund or the Advisers by
such Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) INDEMNIFICATION FOR MARKETING MATERIALS. In addition to the
foregoing indemnification, the Fund and the Advisers also, jointly and
severally, agree to indemnify and hold harmless each 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, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section 6(a),
as limited by the proviso set forth therein, with respect to any Sales Material
in the form approved by the Fund and the Advisers or its affiliates for use by
the Underwriters and securities firms to whom the Fund or the Advisers shall
have disseminated materials in connection with the public offering of the
Securities.
(d) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
17
agreement. In the case of parties indemnified pursuant to Section 6(b) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Fund and the Advisers. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(e) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement; provided that an indemnifying party shall not be liable for any such
settlement effected without its consent if such indemnifying party, prior to the
date of such settlement, (1) reimburses such indemnified party in accordance
with such request for the amount of such fees and expenses of counsel as the
indemnifying party believes in good faith to be reasonable, and (2) provides
written notice to the indemnified party that the indemnifying party disputes in
good faith the reasonableness of the unpaid balance of such fees and expenses.
(f) INDEMNIFICATION OR CONTRIBUTION BY THE FUND. Any indemnification or
contribution by the Fund shall be subject to the requirements and limitations of
Section 17(i) of the 1940 Act.
SECTION 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Fund and the Advisers on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Fund and the Advisers on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
18
The relative benefits received by the Fund and the Advisers on the one
hand and the Underwriters on the other hand in connection with the offering of
the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Fund and the total underwriting discount received by the Underwriters
(whether from the Fund or otherwise), in each case as set forth on the cover of
the Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet, bear to the aggregate initial public offering price of the Securities as
set forth on such cover.
The relative fault of the Fund and the Advisers on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Fund or the Advisers or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Fund, the Advisers and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any 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 person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Fund and each director of the Advisers, respectively, each
officer of the Fund who signed the Registration Statement, and each person, if
any, who controls the Fund or the Advisers, within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Fund and the Advisers, respectively. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Securities set forth opposite their
respective names in SCHEDULE A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Fund or the Advisers submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Fund or the Advisers, and shall survive
delivery of the Securities to the Underwriters.
19
SECTION 9. Termination of Agreement.
(a) TERMINATION; GENERAL. The Representatives may terminate this
Agreement, by notice to the Fund, at any time at or prior to Closing Time (i) if
there has been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Fund or the Advisers, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in the
Common Shares of the Fund has been suspended or materially limited by the
Commission or the AMEX, or if trading generally on the New York Stock Exchange
or the AMEX or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the NASD or any other governmental authority, or
a material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States, or (iv) if a banking
moratorium has been declared by either Federal or New York authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7, 8 and 13 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at Closing Time or a Date
of Delivery to purchase the Securities which it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the Representatives
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date, this Agreement or, with respect to any
Date of Delivery which occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Fund to sell the Option Securities to be
purchased and sold on such Date of Delivery shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Fund to sell the relevant Option Securities, as
the case may be, either the Representatives or the Fund shall have the right to
20
postpone Closing Time or the relevant Date of Delivery, as the case may be, for
a period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
As used herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10.
SECTION 11. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be directed to the
Representatives, c/o Merrill ▇▇▇▇▇ & Co., ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of Equity Capital Markets; notices to the
Fund shall be directed to the office of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Management Inc. at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, cc:
Art Delibert, ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇, ▇▇▇▇▇; and notices to the Advisers shall be directed to the office of
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Management Inc. at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, cc: ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Management Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
SECTION 12. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters, the Fund, the Advisers and their respective partners and
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Fund, the Advisers and their respective successors and the
controlling persons and officers, directors and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Fund, the Advisers and their respective partners and
successors, and said controlling persons and officers, and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN SAID STATE. UNLESS OTHERWISE EXPLICITLY PROVIDED, SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Underwriters, the Fund and the Advisers in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ California Intermediate
Municipal Fund Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman of the Board and
Chief Executive Officer
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Management Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
Quick & ▇▇▇▇▇▇, Inc.
▇▇▇▇▇ Fargo Securities, LLC
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co.
H&R Block Financial Advisors, Inc.
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Authorized Signatory
For themselves and as
Representatives of the
other Underwriters named
in SCHEDULE A hereto.
22
SCHEDULE A
NUMBER OF
NAME OF UNDERWRITER INITIAL SECURITIES
------------------- ------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated.................................... 1,975,000
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.................................... 600,000
▇▇▇▇▇ Fargo ▇▇▇ ▇▇▇▇▇▇ LLC.................................. 600,000
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co........................................ 600,000
Quick & ▇▇▇▇▇▇, Inc......................................... 300,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated.......................... 300,000
H&R Block Financial Advisors, Inc........................... 300,000
CIBC World Markets Corp..................................... 100,000
Deutsche Bank Securities Inc................................ 100,000
Prudential Securities Incorporated.......................... 100,000
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc....................................... 100,000
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.............................. 100,000
Wachovia Securities, Inc.................................... 100,000
BB&T Capital Markets, a subsidiary of ▇▇▇▇▇
& ▇▇▇▇▇▇▇▇▇▇▇▇, Inc........................................ 50,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C.............................. 50,000
▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc..................................... 50,000
▇.▇. ▇▇▇▇▇▇▇▇▇, Towbin...................................... 50,000
▇.▇. ▇▇▇▇▇▇▇▇ & Co.......................................... 50,000
▇▇▇▇▇▇▇▇▇▇ & Co. Inc........................................ 50,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC................................. 50,000
▇▇▇▇▇▇▇▇, Lemon & Co. Incorporated.......................... 50,000
Sch A-1
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated........................ 50,000
McDonald Investments Inc., a KeyCorp Company................ 50,000
The ▇▇▇▇▇▇▇ Companies Incorporated.......................... 50,000
▇▇▇▇▇▇▇▇ Inc................................................ 50,000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated.................... 50,000
TD Waterhouse Investor Services, Inc........................ 50,000
Wedbush ▇▇▇▇▇▇ Securities................................... 50,000
Gilford Securities Incorporated............................. 25,000
▇▇▇▇ ▇▇▇▇▇▇ Investments, Inc................................ 25,000
▇▇▇▇▇ ▇▇▇▇▇▇ Investments LLC................................ 25,000
Lasalle Street Securities................................... 25,000
▇.▇. ▇▇▇▇▇ & Co., Inc....................................... 25,000
Mesirow Financial, Inc...................................... 25,000
SWS Securities, Inc......................................... 25,000
Sands Brothers & Co., Ltd................................... 25,000
▇▇▇▇▇▇▇▇▇ Securities, Inc................................... 25,000
Sterling Financial Investment Group, Inc.................... 25,000
▇▇▇▇▇▇ ▇▇▇▇▇ Securities..................................... 25,000
---------
Total....................................................... 6,300,000
=========
Sch A-1
SCHEDULE B
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ CALIFORNIA INTERMEDIATE MUNICIPAL FUND INC.
6,300,000 Shares of Common Stock
(Par Value $.0001 Per Share)
1. The initial public offering price per share for the Securities, determined
as provided in said Section 2, shall be $15.00.
2. The purchase price per share for the Securities to be paid by the several
Underwriters shall be $14.325, being an amount equal to the initial public
offering price set forth above less $.675 per share; provided that the
purchase price per share for any Option Securities purchased upon the
exercise of the over-allotment option described in Section 2(b) shall be
reduced by an amount per share equal to any dividends or distributions
declared by the Fund and payable on the Initial Securities but not payable
on the Option Securities.
Sch B-1
Exhibit A
FORM OF OPINION OF FUND'S
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b)
September __, 2002
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
and Each of the Other Underwriters Named on Schedule A to
the Below-Referenced Purchase Agreement
c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ California Intermediate Municipal Fund Inc.
Ladies and Gentlemen:
We have acted as special counsel for ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ California
Intermediate Municipal Fund Inc. ("Fund") in connection with the preparation of
the Fund's Registration Statement on Form N-2 (File Nos. 333-_____; 811-_____)
under the Securities Act of 1933, as amended ("Securities Act"), and the
Investment Company Act of 1940, as amended ("Investment Company Act"), initially
filed with the Securities and Exchange Commission ("Commission") on July 29,
2002 and amended on September __, 2002 and on September __, 2002, and the
prospectus constituting a part thereof. We also have acted as counsel to the
Fund in connection with the issuance by the Fund, and the sale in a public
offering pursuant to such Registration Statement, of shares of the Fund's
$0.0001 par value common stock ("Common Shares").
As such counsel, we have been requested to render our opinion as to
certain matters pursuant to Section 5(b) of the Purchase Agreement ("Purchase
Agreement"), dated September 24, 2002, entered into among you, the Fund,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Management Inc. and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC in connection with the
public offering of _____________ Common Shares (comprised of _________ Common
Shares constituting the "Initial Securities" and up to _________ Common Shares
constituting the "Option Securities") . Unless otherwise defined herein or the
context otherwise requires, capitalized terms used herein have the same meanings
as in the Purchase Agreement.
We are familiar with the Registration Statement and the Prospectus, and
in connection with rendering this opinion, we have examined originals or copies
of the following agreements (collectively, the "Fund Agreements"):
1. the Purchase Agreement;
2. the Management Agreement;
3. the Sub-Advisory Agreement;
4. the Administration Agreement;
5. the Custodian Agreement; and
A-1
6. the Transfer Agency Agreement.
In addition, we have examined the articles of incorporation and bylaws
of the Fund and the records of the proceedings and actions of the directors of
the Fund with respect to the transactions contemplated by the Purchase
Agreement, and we have made such other investigation as we have deemed relevant
or necessary in connection with this opinion.
We have relied upon certificates and statements of public officials
and, as to certain matters of fact that are material to our opinions, we have
also relied upon statements and certificates of officers of the Fund or the
Advisers, the Fund's representations set forth in the Purchase Agreement, and
certificates, opinions and other documents delivered by or on behalf of the Fund
pursuant to the Purchase Agreement as to the matters set forth therein. We have
not independently verified the facts stated in such statements, certificates or
other documents.
In rendering our opinion on the matters hereinafter set forth, we also
have made the assumptions that are customary in opinion letters of this kind,
including the assumptions that each document submitted to us is accurate and
complete, that each such document that is an original is authentic, that each
such document that is a copy conforms to an authentic original, and that all
signatures on each such document are genuine. We have further assumed the legal
capacity of natural persons, and we have assumed that each party (other than the
Fund) has the legal capacity and has satisfied all legal requirements that are
applicable to that party to the extent necessary to make Fund Agreements
enforceable against that party. We have not independently verified such
assumptions.
Our opinion, as set forth herein, is based on the facts in existence
and the laws (which, as used herein, includes rules and regulations) in effect
on the date hereof and is limited to: (i) the federal laws of the United States
of America that based on our experience, are applicable to the transactions of
the type covered by the Fund Agreements; (ii) the General Corporation Law of the
State of Maryland; (iii) with respect to the enforceability of the Fund
Agreements other than the Custodian Agreement, the laws of the State of New York
that, based on our experience, are applicable to transactions of the type
covered by those agreements; and (iv) with respect to the enforceability of the
Custodian Agreement, the laws of the Commonwealth of Massachusetts that based on
our experience, are applicable to transactions of the type covered thereby
(collectively, the "Covered Laws"). We express no opinion with respect to any
other laws or the laws of any other jurisdiction or with respect to the
securities or "blue sky" laws of any state, territory or possession of the
United States.
References in this opinion to "our knowledge," "known to us," "aware"
and similar references mean the conscious awareness of facts by attorneys
presently with this firm who have devoted substantive attention to
representation of Fund in matters directly related to the issuance of the Shares
or the Fund Agreements.
On the basis of and subject to the foregoing, we are of the opinion
that:
1. The Fund is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Maryland and is
qualified to do business as a foreign corporation in the State of
New York, which we have been advised by an officer of the Fund is
the only state in which the Fund maintains an office for the
conduct of its business.
2. The Fund has the corporate power and authority to: (i) own its
properties and conduct its business as described in the
Registration Statement and the Prospectus; and (ii) execute,
deliver, and perform its obligations under the Purchase Agreement.
3. To our knowledge, the Fund does not have any subsidiaries.
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4. [The form of certificate approved by the Fund's board of directors
for the purpose of representing the Common Shares complies in all
material respects with any applicable requirement of the Maryland
General Corporation Law, the Fund's articles of incorporation and
by-laws and the American Stock Exchange.]
5. The Common Shares conform in all material respects as to all
statements as to legal matters relating thereto contained in the
Prospectus. No person is entitled to any preemptive or other
similar rights with respect to the Common Shares.
6. The number of authorized Common Shares is as set forth in the
Prospectus under the caption "Description of Shares -- Common
Shares." All Common Shares that to our knowledge have been issued
and are outstanding prior to the issuance of the Initial
Securities: (i) have been duly authorized, validly issued and are
fully paid and non-assessable; and (ii) have been offered and sold
by the Fund in compliance with applicable law.
7. The Securities have been duly authorized for issuance and sale to
the Underwriters pursuant to the Purchase Agreement and, when
issued and delivered by the Fund pursuant to the Purchase
Agreement against payment of the consideration set forth in the
Purchase Agreement, will be validly issued and fully paid and
non-assessable.
8. The Registration Statement, including any Rule 462(b) Registration
Statement, has become effective under the 1933 Act, any required
filing of the Prospectus pursuant to Rule 497(c) or Rule 497(h)
has been made in the manner and within the time period required by
Rule 497, and to our knowledge, no stop order suspending the
effectiveness of the Registration Statement or of any Rule 462(b)
Registration Statement has been issued under the 1933 Act.
9. The Fund is duly registered with the Commission under the 1940 Act
as a closed-end non-diversified management investment company, and
to our knowledge, no order of suspension or revocation of such
registration pursuant to Section 8(e) of the 1940 Act has been
issued and no proceedings for any such purpose have been
instituted or are threatened by the Commission.
10. Other than with respect to financial statements and related notes
and schedules and any other financial, accounting and statistical
information that is included or incorporated by reference in, or
omitted from, the following documents, as to which we express no
opinion: (i) the Registration Statement, including any Rule 462(b)
Registration Statement and any Rule 430A Information, the
Prospectus and any amendment or supplement thereto through the
date hereof complied as to form in all material respects with the
requirements of the 1933 Act and the Rules and Regulations
thereunder; and (ii) the Fund's notification of registration on
Form N-8A complied as to form in all material respects with the
requirements of the 1940 Act and the Rules and Regulations
thereunder.
11. Insofar as the statements in the Prospectus under the captions
"Description of Shares - Common Shares," "Tax Matters - General;
Taxation of the Fund" and ""Tax Matters - Taxation of the Fund's
Shareholders" and in the Registration Statement under Item 29
(Indemnification) constitute summaries of legal matters,
provisions of the Fund's articles of incorporation or by-laws or
legal proceedings or legal conclusions referred to therein, those
statements fairly present the information called for with respect
to those legal matters, documents, proceedings or conclusions.
12. To our knowledge: (i) there are no United States federal statutes
or regulations that are required to be described in the Prospectus
that are not so described; (ii) all contracts and other documents
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required to be described or referred to in the Registration
Statement or filed as exhibits thereto have been so described,
referred to or filed, as the case may be; and (iii) the
descriptions of the contracts and other documents referenced in
clause (ii) of this paragraph are accurate in all material
respects.
13. To our knowledge, there is no action, suit, proceeding, inquiry or
investigation by or before any court or governmental agency that
is pending against the Fund or to which any of its properties are
subject or that is threatened against the Fund, which may
reasonably be expected to result in a Material Adverse Effect or
to materially and adversely affect the properties or assets of the
Fund, the consummation by the Fund of the transactions
contemplated in the Purchase Agreement or the performance by the
Fund of its obligations thereunder.
14. To the extent they call for representations, warranties, or
performance by the Fund, the terms of each of the Fund Agreements
do not violate in any material respect any applicable provision of
1940 Act, the Rules and Regulations thereunder, the Advisers Act
or the Advisers Act Rules and Regulations.
15. Neither the execution and delivery by the Fund of, and the
performance by the Fund of its obligations under, the Purchase
Agreement, nor the issuance and sale of the Securities to the
Underwriters and the use by the Fund of the proceeds thereof as
described in the Prospectus under the caption "Use of Proceeds":
(i) violate the Fund's articles of incorporation or bylaws; (ii)
violate, breach or constitute a default or event of default under
the terms of any agreement or instrument known to us to which the
Fund is a party or by which its property may be bound, except for
violations, breaches or defaults that would not have a Material
Adverse Effect; (iii) result in the creation or imposition of any
lien, charge or encumbrance on any of the property of the Fund
pursuant to the express terms of any such agreement or instrument,
except for liens, charges or encumbrances that would not have a
Material Adverse Effect; (iv) violate the Covered Laws; or (v) to
our knowledge, require the Fund to obtain any consent or approval
by, or make any filing with, any court, regulatory body,
administrative or other governmental body, agency or official
under any statute, rule, or regulation of the State of Maryland or
of the United States, other than consents, approvals and filings
previously obtained or made and in full force and effect.
16. The execution and delivery of, and performance of the Fund's
obligations under, each of the Fund Agreements have been duly
authorized by all necessary action of the Fund, and the Fund has
duly executed and delivered each of the Fund Agreements.
17. Each of the Fund Agreements constitutes the legal, valid and
binding obligation of the Fund, enforceable against it in
accordance with its terms, except as the enforceability thereof
may be limited by the effect of bankruptcy, insolvency, fraudulent
transfer, reorganization, receivership, moratorium, and other,
similar laws affecting the rights and remedies of creditors
generally and by general principles of equity (whether applied by
a court of law or equity), and except as rights to indemnity
thereunder may be limited by federal or state securities laws.
We are not opining as to factual matters, and the character of
determinations involved in the registration process is such that we are not
passing upon and do not assume any responsibility for the accuracy, completeness
or fairness of the information included in the Registration Statement and the
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Prospectus or in any amendment or supplement thereto. We assume the correctness
and completeness of the information included therein, and we have made no
independent investigation or verification of that information. However, we have
participated in the preparation of the Registration Statement and the Prospectus
and in discussions with certain officers and directors of the Fund, certain
officers and employees of the Adviser and your representatives, and we have
reviewed certain Fund records and documents. Based on that participation and
review, we can advise you that nothing has come to our attention that causes us
to believe that the Registration Statement, including any Rule 462(b)
Registration Statement and any Rule 430A Information, at the time it became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus or any amendment or
supplement thereto, at the time that the Prospectus was issued or at the Closing
Time, included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. This paragraph
does not address, and we express no opinion with respect to, the financial
statements and related notes and schedules, and other financial, accounting, and
statistical information, included in, incorporated by reference in, or omitted
from the Registration Statement, the Prospectus, or any amendment or supplement
to either of them. We also express no opinion with respect to any matter
relating to compliance with financial covenants or financial requirements.
This opinion is rendered solely for your use in connection with the
public offering of the Initial Securities pursuant to the Purchase Agreement and
may not be relied upon by you for any other purpose or by any other person or
agency for any purpose or transaction without our prior written consent, except
that you may, if so required, furnish a copy of this opinion to any regulatory
agency having regulatory jurisdiction over you or as required by law or legal
process and except that ▇▇▇▇▇▇▇▇ Chance US LLP may rely upon those portions of
this opinion that address Maryland law for the purpose of rendering their
opinion, dated of even date herewith, to you pursuant to Section 5 of the
Purchase Agreement.
Sincerely yours,
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Exhibit B
FORM OF OPINION OF ADVISERS' COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) NB Management is validly existing as a corporation in good
standing under the laws of New York, and NB LLC is validly existing as
a limited liability company in good standing under the laws of
Delaware.
(ii) Each Adviser has full corporate or limited liability company,
as the case may be, power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and to enter into and perform its obligations under the Purchase
Agreement.
(iii) Each Adviser is duly qualified as a foreign corporation or
limited liability company, as the case may be, to transact business and
is in good standing in each state set forth opposite its name on Annex
A hereto (such counsel being entitled to rely in respect of the opinion
in this clause upon certificates of government officials in the
relevant jurisdictions regarding each Adviser's qualification as a
foreign corporation or limited liability company, as the case may be,
and in good standing and in respect of matters of fact upon
certificates of the Advisers).
(iv) Each Adviser 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 Rules and Regulations from acting under the Management Agreement
for the Fund as contemplated by the Prospectus.
(v) The Purchase Agreement, the Management Agreement, the
Sub-Advisory Agreement and the Additional Compensation Agreement have
been duly authorized, executed and delivered by the respective Adviser,
and (assuming the due authorization, execution and delivery by each of
the other parties thereto) the Management Agreement, the Sub-Advisory
Agreement and the Additional Compensation Agreement each constitutes a
valid and binding obligation of the respective Adviser, enforceable
against it in accordance with its terms, as rights to indemnity and
contribution hereunder and thereunder may be limited by public policy
or federal or state securities laws and except as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing (except that counsel may state that it expresses no
opinion as to the reasonableness or fairness of compensation payable
under the Management Agreement, the Sub-Advisory Agreement or the
Additional Compensation Agreement).
(vi) To our knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which the
Advisers are a party, or to which the property of the Advisers is
subject, before or brought by any court or governmental agency or body,
domestic or foreign, which would, individually or in the aggregate,
reasonably be expected to result in any Adviser Material Adverse Effect
or materially and adversely affect the ability of the Advisers to
function as an investment adviser or perform their obligations under
the Management Agreement or the Sub-Advisory Agreement.
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(vii) To our knowledge, no filing with, or authorization,
approval, consent, license, order, registration, qualification or
decree of, any New York, Delaware (insofar as Delaware limited
liability company law is concerned) or United States federal court or
governmental authority or agency (other than under the 1933 Act, the
1940 Act and the Rules and Regulations, which have been obtained, or as
may be required under the securities or blue sky laws of the various
states, in each case, as to which we need express no opinion) is
necessary or required in connection with the due authorization,
execution and delivery of the Purchase Agreement.
(viii) The execution, delivery and performance of the Purchase
Agreement, the Management Agreement, the Sub-Advisory Agreement, the
Administration Agreement and the Additional Compensation Agreement and
the consummation of the transactions contemplated in the Purchase
Agreement, the Management Agreement, the Sub-Advisory Agreement, the
Administration Agreement and the Additional Compensation Agreement and
in the Registration Statement and compliance by each Adviser that is a
party thereto with their obligations under the Purchase Agreement, the
Management Agreement, the Sub-Advisory Agreement, the Administration
Agreement and the Additional Compensation Agreement (i) do not and will
not, whether with or without the giving of notice or lapse of time or
both, conflict with or constitute a breach of, or default or Repayment
Event (as defined in Section 1(a)(xiii) of the Purchase Agreement)
under or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Advisers pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or any other agreement or instrument, set forth in the
certificate provided by each of the Advisers pursuant to Section 5(l)
of the Purchase Agreement, (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not have an
Adviser Material Adverse Effect), (ii) nor will such action result in
any violation of (A) the provisions of the charter or by-laws of the
Advisers, or (B) any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to us, of any New York, Delaware
(insofar as Delaware limited liability company law is concerned) or
United States federal government, government instrumentality or court,
having jurisdiction over the Advisers or any of its properties, assets
or operations (except for such violations that would not have an
Adviser Material Adverse Effect).
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Annex A
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Management Inc.
--------------------------------
California
Georgia
Illinois
Maryland
Massachusetts
Texas
Colorado
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC
---------------------
California
District of Columbia
Florida
Georgia
Illinois
Massachusetts
Missouri
New York
North Dakota
Ohio
Oklahoma
Pennsylvania
Texas
B-3
Exhibit C
FORM OF OPINION OF FUND'S COUNSEL TO BE
DELIVERED PURSUANT TO SECTION 5(c)
With respect to the Fund:
The statements in the Prospectus under the captions "Risks - State
Specific Risks" and "Tax Matters - California Tax Matters" (in the prospectus)
and "Appendix B - California and U.S. Territory Information" and "Appendix B"
(Taxable Equivalent Yield Table)" (in the statement of additional information),
insofar as they refer to statements of law or legal conclusions, are accurate
and present fairly the information shown.
In addition, we have participated in the preparation of, and have
reviewed and discussed the contents of, the Registration Statement and
Prospectus with certain officers and employees of the Fund and NB Management and
with counsel for the Fund concerning the statements set forth in the
Registration Statement and Prospectus under the captions "Risk - State Specific
Risks" and "Tax Matters - California Tax Matters" (in the prospectus) and
"Appendix B - California and U.S. Territory Information" and "Appendix B
(Taxable Equivalent Yield Table)" (in the statement of additional information),
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 or any amendment or supplement thereto under such captions (except as
to any financial statements or other financial data included in the Registration
Statement or any such amendment or supplement, 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 or any amendment or supplement thereto
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
Date of Delivery, as the case may be, 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 contained therein, in the
light of the circumstances under which they were made, not misleading.
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