December 16, 2021
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(Date of Event Which Requires Filing of this Statement)
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1
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NAMES OF REPORTING PERSONS
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Bank of America Corporation 56-0906609 |
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a)
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☐
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(b)
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☒
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (SEE INSTRUCTIONS)
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WC |
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
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☐
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
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Delaware |
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
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7
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SOLE VOTING POWER
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0 |
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8
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SHARED VOTING POWER
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1,704 |
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9
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SOLE DISPOSITIVE POWER
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0 |
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10
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SHARED DISPOSITIVE POWER
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1,704 |
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
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1,704 |
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
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☐
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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100% |
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
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HC |
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1
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NAMES OF REPORTING PERSONS
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Banc of America Preferred Funding Corporation 75-2939570 |
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a)
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☐
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(b)
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☒
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (SEE INSTRUCTIONS)
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WC |
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
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☐
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
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Delaware |
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
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7
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SOLE VOTING POWER
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0 |
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8
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SHARED VOTING POWER
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1,704 |
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9
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SOLE DISPOSITIVE POWER
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0 |
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10
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SHARED DISPOSITIVE POWER
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1,704 |
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
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1,704 |
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
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☐
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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100% |
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
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CO |
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Item 2.
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Identity and Background
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Item 7.
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Material to be Filed as Exhibits
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"Exhibit
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Description of Exhibit
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99.1
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Joint Filing Agreement
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99.2
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Power of Attorney
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99.9
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Amended and Restated VMTP Purchase Agreement dated December 16, 2021 between the Issuer and BAPFC"
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BANK OF AMERICA CORPORATION
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By:
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/s/ Michael Jentis
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Name:
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Michael Jentis
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Title:
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Attorney-in-fact
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BANC OF AMERICA PREFERRED FUNDING CORPORATION
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By:
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/s/ Michael Jentis
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Name:
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Michael Jentis
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Title:
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Authorized Signatory
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Exhibit
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Description of Exhibit
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Joint Filing Agreement
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Power of Attorney
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Amended and Restated VMTP Purchase Agreement dated December 16, 2021 between the Issuer and BAPFC
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Name
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Position with Bank of
America Corporation
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Principal Occupation
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Brian T. Moynihan
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Chairman of the Board, Chief Executive Officer, President and Director
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Chairman of the Board, Chief Executive Officer, and President of Bank of America Corporation
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Holly O’Neill
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President, Retail Banking
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President, Retail Banking of Bank of America Corporation
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Aditya Bhasin
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Chief Technology and Information Officer
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Chief Technology and Information Officer of Bank of America Corporation
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Sheri Bronstein
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Chief Human Resources Officer
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Chief Human Resources Officer of Bank of America Corporation
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Alastair Borthwick
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Chief Financial Officer
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Chief Financial Officer of Bank of America Corporation
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Geoffrey Greener
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Chief Risk Officer
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Chief Risk Officer of Bank of America Corporation
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Kathleen A. Knox
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President, Private Bank
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President, Private Bank of Bank of America Corporation
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Lauren Anne Mogensen
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Global General Counsel
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Global General Counsel of Bank of America Corporation
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Thomas K. Montag
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Chief Operating Officer
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Chief Operating Officer of Bank of America Corporation
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Anne Finucane
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Vice Chairman
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Vice Chairman of Bank of America Corporation
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Andrew M. Sieg
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President, Merrill Lynch Wealth Management
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President, Merrill Lynch Wealth Management
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Andrea B. Smith
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Chief Administrative Officer
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Chief Administrative Officer of Bank of America Corporation
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Sharon L. Allen
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Director
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Former Chairman of Deloitte LLP
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Susan S. Bies
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Director
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Former Member, Board of Governors of the Federal Reserve System
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Lionel L. Nowell, III
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Lead Independent Director
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Former Senior Vice President and Treasurer, PepsiCo Inc.
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Frank P. Bramble, Sr.
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Director
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Former Executive Vice Chairman, MBNA Corporation
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Pierre de Weck1
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Director
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Former Chairman and Global Head of Private Wealth Management, Deutsche Bank AG
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Arnold W. Donald
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Director
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President and Chief Executive Officer, Carnival Corporation & Carnival plc
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Linda P. Hudson
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Director
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Former Executive Officer, The Cardea Group, LLC and Former President and Chief Executive Officer of BAE Systems, Inc.
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Monica C. Lozano
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Director
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Chief Executive Officer, College Futures Foundation and Former Chairman, US Hispanic Media Inc.
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Thomas J. May
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Director
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Former Chairman, President, and Chief Executive Officer of Eversource Energy
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Lionel L. Nowell, III
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Director
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Former Senior Vice President and Treasurer, PepsiCo Inc.
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Denise L. Ramos
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Director
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Former Chief Executive Officer and President of ITT Inc.
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Clayton S. Rose
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Director
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President of Bowdoin College
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Michael D. White
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Director
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Lead Director of Kimberly-Clark Corporation; Former Chairman, President, and Chief Executive Officer of DIRECTV
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Thomas D. Woods2
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Director
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Former Vice Chairman and Senior Executive Vice President of Canadian Imperial Bank of Commerce; Former Chairman, Hydro One Limited
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R. David Yost
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Director
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Former Chief Executive Officer of AmerisourceBergen Corp.
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Maria T. Zuber
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Director
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Vice President for Research and E.A., Griswold Professor of Geophysics, MIT
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1
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Mr. de Weck is a citizen of Switzerland.
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2
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Mr. Woods is a citizen of Canada.
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Name
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Position with Banc of
America Preferred
Funding Corporation
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Principal Occupation
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John J. Lawlor
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Director and President
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Managing Director, Municipal Markets and Public Sector Banking Executive of Merrill Lynch, Pierce, Fenner & Smith Incorporated and Bank of America, National Association
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Edward H. Curland
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Director and Managing Director
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Managing Director, Municipal Markets Executive for Trading of Merrill Lynch, Pierce, Fenner & Smith Incorporated and Bank of America, National Association
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James Duffy
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Managing Director
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Director; MBAM BFO, The CFO Group of Bank of America, National Association
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Michael I. Jentis
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Managing Director
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Managing Director, Head of Sales – Public Finance of Merrill Lynch, Pierce, Fenner & Smith Incorporated and Bank of America, National Association
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Mona Payton
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Managing Director
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Managing Director, Municipal Markets Executive for Short-Term Trading of Merrill Lynch, Pierce, Fenner & Smith Incorporated and Bank of America, National Association
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Edward J. Sisk
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Director and Managing Director
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Managing Director, Public Finance Executive of Merrill Lynch, Pierce, Fenner & Smith Incorporated and Bank of America, National Association
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John B. Sprung
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Director
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Corporate Director
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David A. Stephens
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Director and Managing Director
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Managing Director, Executive for Public Finance and Public Sector Credit Products of Merrill Lynch, Pierce, Fenner & Smith Incorporated and Bank of America, National Association
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BANK OF AMERICA CORPORATION
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By:
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/s/ Michael Jentis
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Name:
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Michael Jentis
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Title:
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Attorney-in-fact
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BANC OF AMERICA PREFERRED FUNDING CORPORATION
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By:
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/s/ Michael Jentis
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Name:
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Michael Jentis
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Title:
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Authorized Signatory
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BANK OF AMERICA CORPORATION
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By:
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/s/ Ellen A. Perrin
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Name:
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Ellen A. Perrin
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Title:
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Associate General Counsel and Senior Vice President
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SECTION
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PAGE
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ARTICLE I DEFINITIONS
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2
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1.1
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Incorporation of Certain Definitions by Reference and Interpretation
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7
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ARTICLE II PURCHASE AND TRANSFERS, COSTS AND EXPENSES; ADDITIONAL FEE
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7
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2.1
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Purchase and Transfer of the VMTP Shares
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7
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2.2
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Fees
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9
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2.3
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Operating Expenses
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9
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2.4
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Additional Fee for Failure to Comply with Reporting Requirement or Registration Rights Failure
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9
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ARTICLE III CONDITIONS TO AMENDMENT AND RESTATEMENT DATE
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10
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE ISSUER
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11
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4.1
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Existence
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11
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4.2
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Authorization; Contravention
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11
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4.3
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Binding Effect
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11
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4.4
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Financial Information
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12
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4.5
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Litigation
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12
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4.6
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Consents
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12
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4.7
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Placement of VMTP Shares
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12
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4.8
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Complete and Correct Information
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15
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4.9
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1940 Act Registration
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15
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4.10
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Effective Leverage Ratio; Asset Coverage
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15
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4.11
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Credit Quality
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15
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4.12
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Due Diligence
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16
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4.13
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Certain Fees
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16
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4.14
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Eligible Assets
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16
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ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
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16
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5.1
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Existence
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16
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5.2
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Authorization; Contravention
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17
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5.3
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Binding Effect
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17
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5.4
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Restricted Securities; Own Account
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17
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5.5
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Litigation
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17
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5.6
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Consents
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18
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5.7
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Purchaser Status
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18
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5.8
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Experience of the Purchaser
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18
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5.9
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Certain Transactions
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18
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5.10
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Due Diligence
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18
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5.11
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Certain Fees
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18
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ARTICLE VI COVENANTS OF THE ISSUER
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19
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6.1
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Information
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19
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6.2
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No Amendment or Certain Other Actions Without Consent of the Purchaser
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22
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6.3
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Maintenance of Existence
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22
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6.4
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Tax Status of the Issuer
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22 | |
6.5
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Payment Obligations
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22
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6.6
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Compliance With Law
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22
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6.7
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Maintenance of Approvals: Filings, Etc.
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22
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6.8
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Inspection Rights
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23
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6.9
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Litigation, Etc.
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23
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6.10
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1940 Act Registration
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23
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6.11
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Credit Quality
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23
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6.12
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Maintenance of Effective Leverage Ratio
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24
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6.13
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Redemption and Paying Agent
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24
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6.14
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Cooperation in the Sale of the VMTP Shares
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24
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6.15
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Use of Proceeds
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25
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6.16
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Securities Depository
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25
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6.17
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Future Agreements
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25
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6.18
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Eligible Assets
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25
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6.19
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Placement of VMTP Shares
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25
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ARTICLE VII MISCELLANEOUS
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26
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7.1
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Notices
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26
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7.2
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No Waivers
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27
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7.3
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Expenses and Indemnification
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27
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7.4
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Amendments and Waivers
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30
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7.5
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Successors and Assigns
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30
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7.6
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Term of this Agreement
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31
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7.7
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Governing Law
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31
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7.8
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Waiver of Jury Trial
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31
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7.9
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Counterparts
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31
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7.10
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Beneficiaries
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31
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7.11
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Entire Agreement
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31
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7.12
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Relationship to the Articles Supplementary
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32
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7.13
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Confidentiality
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32
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7.14
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Severability
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33
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7.15
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Consent Rights of the Majority Participants to Certain Actions.
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33
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SCHEDULE 1
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Schedule 1-1
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SCHEDULE 2
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Schedule 2-1
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EXHIBIT A
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FORMS OF OPINIONS OF COUNSEL FOR THE ISSUER
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A-1
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EXHIBIT A-1
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FORM OF CORPORATE AND 1940 ACT OPINION
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A-1-1
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EXHIBIT A-2
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FORM OF TAX OPINION
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A-2-1
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EXHIBIT A-3
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FORM OF LOCAL COUNSEL OPINION
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A-3-1
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EXHIBIT A-4
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FORM OF NEGATIVE ASSURANCE LETTER
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A-4-1
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EXHIBIT B
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ELIGIBLE ASSETS
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B-1
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EXHIBIT C
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TRANSFEREE CERTIFICATE
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C-1
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EXHIBIT D
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INFORMATION TO BE PROVIDED BY THE ISSUER
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D-1
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ANNEX A
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MATERIAL LITIGATION STATEMENT
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ANNEX A
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1.1 |
Incorporation of Certain Definitions by Reference and Interpretation
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2.1 |
Purchase and Transfer of the VMTP Shares
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(a) |
(i) On the Effective Date, BAPFC acquired 876 of the VMTP Shares and Blue Ridge acquired 918 of the VMTP Shares, sold on initial issuance in a transaction (which, based upon the representations of the Issuer, BAPFC and Blue Ridge, is
exempt from registration under the Securities Act), in each case, by payment of the Purchase Price in immediately available funds to the Issuer through the account of its Custodian or its agent at the Securities Depository.
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(c) |
In the event that the Purchaser transfers, in accordance with Section 2.1(b), VMTP Shares to a tender option bond trust in which the Purchaser retains a residual interest, for so long as no event has occurred that results in the
termination of such tender option bond trust, for purposes of each of the Applicable Sections (as defined below) that requires, permits or provides for (i) notice or the delivery of information to or (ii) voting of the VMTP Shares or the
giving of any consent by or (iii) payment of fees, in each case, to the Purchaser or the Majority Participants, the Purchaser, and not such tender option bond trust, shall be deemed to be the actual owner of such VMTP Shares. For the
avoidance of doubt, the deemed ownership provided for in this Section 2.1(c) shall be limited to the following sections of this Agreement: 2.1(b), 2.4, 6.1, 6.2, 6.8, 6.9, 6.12, 6.14, 6.17, 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.8, 7.10, 7.12
and 7.15 (collectively, the "Applicable Sections"). The deemed ownership provided for in this Section 2.1(c) shall last until the earliest of (A) the termination of such tender option bond trust;
(B) the agreement by the Issuer and the Purchaser to terminate such deemed ownership; and (C) with respect to some or all of the Applicable Sections, the good-faith determination by the Purchaser that such deemed ownership has adverse
tax, legal or other regulatory consequences or is otherwise no longer consistent with applicable law.
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(d) |
Anything herein to the contrary notwithstanding, except with respect to the deemed ownership provided for above in respect of the Applicable Sections, the tender option bond trust to which VMTP Shares are transferred and each of the
beneficial owners thereof shall retain all of its other rights in respect of the Issuer and the VMTP Shares pursuant to this Agreement and the Articles Supplementary or under law, including, for the avoidance of doubt, its rights under
any of the Applicable Sections to the extent necessary for the protection or exercise of such other rights retained pursuant to this Section 2.1(d) or that are otherwise applicable as a result of the exercise of such other rights.
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2.2 |
Fees
|
2.3 |
Operating Expenses
|
2.4 |
Additional Fee for Failure to Comply with Reporting Requirement or Registration Rights Failure
|
(a) |
this Agreement shall have been duly executed and delivered by the parties hereto;
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(b) |
the VMTP Shares shall have a long-term issue credit rating of at least AA- (or its equivalent) from Fitch on the Amendment and Restatement Date;
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(d) |
receipt by the Purchaser of opinions of counsel for the Issuer, substantially to the effect of Exhibit A;
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(e) |
(f) |
the fees and expenses and all other amounts payable on the Amendment and Restatement Date pursuant to Section 2.2 hereof shall have been paid;
|
(h) |
there shall have been delivered to the Purchaser any additional documentation and financial information, including satisfactory responses to the Due Diligence Request, as it deems relevant; and
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4.1 |
Existence
|
4.2 |
Authorization; Contravention
|
4.3 |
Binding Effect
|
4.4 |
Financial Information
|
4.5 |
Litigation
|
4.6 |
Consents
|
4.7 |
Placement of VMTP Shares
|
(a) |
The terms of the VMTP Shares conform in all material respects to those set forth in the Articles Supplementary.
|
(j) |
The Issuer has taken all reasonable measures to ensure that any Bloomberg screen containing information about the VMTP Shares includes the following (or similar) language:
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(k) |
(l) |
4.8 |
Complete and Correct Information
|
4.9 |
1940 Act Registration
|
4.10 |
Effective Leverage Ratio; Asset Coverage
|
4.11 |
Credit Quality
|
4.12 |
Due Diligence
|
4.13 |
Certain Fees
|
4.14 |
Eligible Assets
|
5.1 |
Existence
|
5.2 |
Authorization; Contravention
|
5.3 |
Binding Effect
|
5.4 |
Restricted Securities; Own Account
|
5.5 |
Litigation
|
5.6 |
Consents
|
5.7 |
Purchaser Status
|
5.8 |
5.9 |
Certain Transactions
|
5.10 |
Access to Information
|
5.11
|
Due Diligence
|
5.12
|
Certain Fees
|
6.1 |
Information
|
(a) |
as promptly as practicable after the preparation and filing thereof with the Securities and Exchange Commission, each annual and semi-annual report prepared with respect to the Issuer, which delivery may be made by notice of the
electronic availability of any such document on a public website;
|
(c) |
notice of any redemption or other repurchase of any or all of the VMTP Shares as provided in the Articles Supplementary;
|
(d) |
notice of any proposed amendments to any of the Related Documents at such time as the amendments are sent to other parties (other than the Board of Directors) whose approval is required for such amendment and in any event not less than
ten (10) Business Days prior to any proposed amendment and copies of all actual amendments thereto within ten (10) Business Days of being signed or, in each case, as provided in the relevant document;
|
(e) |
notice of any missed, reduced or deferred dividend payment on the VMTP Shares that remains uncured for more than three (3) Business Days as soon as reasonably practicable, but in no event later than one (1) Business Day after
expiration of the foregoing grace period;
|
(f) |
notice of the failure to make any deposit provided for under Section 11 of the Articles Supplementary in respect of a properly noticed redemption as soon as reasonably practicable, but in no event later than two (2) Business Days after
discovery of such failure to make any such deposit;
|
(g) |
notice of noncompliance with the basic maintenance amount requirements or material noncompliance with other requirements comprising the Rating Agency Guidelines (if applicable) for more than five (5) Business Days as soon as reasonably
practicable, but in no event later than one (1) Business Day after expiration of the foregoing grace period;
|
(h) |
notice of the distribution of net capital gains or ordinary income one (1) Business Day in advance of the Rate Period that such net capital gains or ordinary income will or may be distributed, which notice shall be in addition to any
notice provided by the Redemption and Paying Agent to Designated Owners or their Agent Members;
|
(i) |
notice of any change to any investment adviser or sub-adviser of the Issuer within two (2) Business Days after a resignation or a notice of removal has been sent by or to any investment adviser or sub-adviser;
|
(j) |
(k) |
notice no later than two (2) Business Days after the occurrence thereof of (i) the failure of the Issuer to pay the amount due on any "senior securities" (as defined under the 1940 Act) or other debt issued by the Issuer at the time
outstanding, and any period of grace or cure with respect thereto shall have expired; (ii) the failure of the Issuer to pay, or admitting in writing its inability to pay, its debts generally as they become due; or (iii) the failure of the
Issuer to pay accumulated dividends on any additional preferred stock ranking pari passu with the VMTP Shares, after any period of grace or cure with respect thereto shall have expired;
|
(l) |
notice of a material breach of any representation, warranty or covenant of the Issuer contained in this Agreement, the Registration Rights Agreement or the Articles Supplementary, in each case, only if an officer of the Issuer has
actual knowledge of such breach as soon as reasonably practicable, but in no event later than five (5) Business Days after actual knowledge of an officer of the Issuer;
|
(m) |
notice of any litigation, administrative proceeding or business development which may reasonably be expected to materially adversely affect the Issuer's business, properties or affairs, or the ability of the Issuer to perform its
obligations as set forth hereunder or under any of the other Related Documents to which it is a party as soon as reasonably practicable, but in no event later than ten (10) Business Days after actual knowledge of an officer of the Issuer
thereof;
|
(n) |
upon request of the Purchaser, copies of any material that the Issuer has delivered to each Rating Agency which is then rating VMTP Shares at such times and containing such information as set forth in the respective Rating Agency
Guidelines as soon as reasonably practicable after such material has been sent;
|
(q) |
from time to time such additional information regarding the financial position, results of operations or prospects of the Issuer as the Purchaser may reasonably request including, without limitation, copies of offering materials with
respect to the sale of any securities of the Issuer as soon as reasonably practicable, but in no event later than seven (7) Business Days after such a request.
|
6.2 |
No Amendment or Certain Other Actions Without Consent of the Purchaser
|
6.3 |
Maintenance of Existence
|
6.4 |
Tax Status of the Issuer
|
6.5 |
Payment Obligations
|
6.6 |
Compliance With Law
|
6.7 |
Maintenance of Approvals: Filings, Etc.
|
6.8 |
Inspection Rights
|
6.9 |
Litigation, Etc.
|
6.10 |
1940 Act Registration
|
6.11 |
Credit Quality
|
6.12 |
Maintenance of Effective Leverage Ratio
|
6.13 |
Redemption and Paying Agent
|
6.14 |
Cooperation in the Sale of the VMTP Shares
|
6.15 |
Securities Depository
|
6.16 |
Future Agreements
|
6.17 |
Eligible Assets
|
6.18 |
Placement of VMTP Shares
|
7.1 |
Notices
|
(a) |
if to the Issuer:
|
Attention:
|
General Counsel, Closed-End Funds
|
Telephone:
|
(646) 497-4798
|
Facsimile:
|
(646) 537-3904
|
Email:
|
corey.issing@nb.com
|
Attention:
|
Jennifer Gonzalez
|
Telephone:
|
(202) 778-9286
|
Facsimile:
|
(202) 778-9100
|
Email:
|
jennifer.gonzalez@klgates.com
|
(b) |
if to the Purchaser:
|
Attention:
|
Thomas Visone
|
Telephone:
|
(212) 449-7358
|
Email:
|
thomas.visone@bofa.com
|
7.2 |
No Waivers
|
(a) |
The obligations of the Issuer hereunder shall not in any way be modified or limited by reference to any other document, instrument or agreement (including, without limitation, the VMTP Shares or any other Related Document). The rights
of the Purchaser hereunder are separate from and in addition to any rights that any Holder or Designated Owner of any VMTP Share may have under the terms of such VMTP Share or any Related Document or otherwise.
|
(b) |
No failure or delay by the Issuer or the Purchaser in exercising any right, power or privilege hereunder or under the VMTP Shares shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege. No failure or delay by the Issuer or the Purchaser in exercising any right, power or privilege under or in respect of the VMTP Shares or any other Related
Document shall affect the rights, powers or privileges of the Issuer or the Purchaser hereunder or shall operate as a limitation or waiver thereof. The rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
|
7.3 |
Expenses and Indemnification
|
(a) |
The Issuer shall upon demand either, as the Purchaser may require, pay in the first instance or reimburse the Purchaser (to the extent that payments for the following items are not made under the other provisions hereof) for all
reasonable out-of-pocket expenses (including reasonable fees and costs of outside counsel, and reasonable consulting, accounting, appraisal, investment banking, and similar professional fees and charges) incurred by the Purchaser in
connection with the enforcement of or preservation of rights under this Agreement. The Issuer shall not be responsible under this Section 7.3(a) for the fees and costs of more than one law firm in any one jurisdiction with respect to any
one proceeding or set of related proceedings for the Purchaser, unless the Purchaser shall have reasonably concluded that there are legal defenses available to it that are different from or additional to those available to the Issuer.
|
(b) |
The Issuer agrees to indemnify and hold harmless the Purchaser and each other Indemnified Person of the Purchaser from and against any losses, claims, damages, liabilities and reasonable out-of-pocket expenses incurred by them
(including reasonable fees and disbursements of outside counsel) that are related to or arise out of) any claim by any third party relating to the offering or sale of the VMTP Shares by the Issuer or the holding of the VMTP Shares by the
Purchaser (A) that the Purchaser aided and abetted a breach of a fiduciary duty by the Issuer or any director or officer of the Issuer or (B) arising from any act by the Issuer or any director or officer of the Issuer (excluding in any
such case clauses (i) or (ii), claims, losses, liabilities or expenses arising out of or resulting from the gross negligence or willful misconduct of any Indemnified Person as determined by a court of competent jurisdiction).
|
(c) |
The indemnifying party also agrees that if any indemnification sought by an Indemnified Person pursuant to this Agreement is unavailable or insufficient, for any reason, to hold harmless the Indemnified Persons of such other party in
respect of any losses, claims, damages or liabilities (or actions in respect thereof), then the indemnifying party, in order to provide for just and equitable contribution, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, liabilities, damages and expenses (or actions in respect thereof) in such proportion as is appropriate to reflect (i) the relative benefits received by the Issuer on the one hand and
the Purchaser on the other hand from the actual transactions giving rise to or contemplated by this Agreement or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, not only such relative
benefits but also the relative fault of the Issuer on the one hand and the Purchaser on the other, in connection with the statements or omissions or alleged statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses (or actions in respect thereof), as well as any other relevant equitable considerations; provided that in any event the aggregate contribution of the Purchaser and its Indemnified Persons to all losses, claims,
damages, liabilities and expenses with respect to which contributions are available hereunder will not exceed the amount of dividends to be received by the Purchaser from the Issuer pursuant to the transactions giving rise to this
Agreement. For purposes of determining the relative benefits to the Issuer on the one hand, and the Purchaser on the other, under the transactions giving rise to or contemplated by this Agreement, such benefits shall be deemed to be in
the same proportion as (i) the total value received by the Issuer pursuant to the transactions, whether or not consummated bears to (ii) the dividends and Optional Redemption Premium paid by the Issuer to the Purchaser in connection with
the transactions giving rise to or contemplated by this Agreement. The relative fault of the parties shall be determined by reference to, among other things, whether the actions taken or omitted to be taken in connection with the
transactions contemplated by this Agreement (including any misstatement of a material fact or the omission to state a material fact) relates to information supplied by the Issuer on the one hand, or the Purchaser on the other, the
parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action, misstatement or alleged omission, and any other equitable considerations appropriate in the circumstances. No person found
liable for a fraudulent misrepresentation shall be entitled to contribution from any person who is not also found liable for such fraudulent misrepresentation. The indemnity, reimbursement and contribution obligations under this Agreement
shall be in addition to any rights that any Indemnified Person may have at common law or otherwise.
|
(d) |
If any action, suit, proceeding or investigation is commenced, as to which an Indemnified Person proposes to demand indemnification, it shall notify the indemnifying party with reasonable promptness; provided, however, that any failure
by such Indemnified Person to notify the indemnifying party shall not relieve the indemnifying party from its obligations hereunder (except to the extent that the indemnifying party is materially prejudiced by such failure to promptly
notify). The indemnifying party shall be entitled to assume the defense of any such action, suit, proceeding or investigation, including the employment of counsel reasonably satisfactory to the Indemnified Person. The Indemnified Person
shall have the right to counsel of its own choice to represent it, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the indemnifying party has failed promptly to assume the defense
and employ counsel reasonably satisfactory to the Indemnified Person in accordance with the preceding sentence or (ii) the Indemnified Person shall have been advised by counsel that there exist actual or potential conflicting interests
between the indemnifying party and such Indemnified Person, including situations in which one or more legal defenses may be available to such Indemnified Person that are different from or additional to those available to the indemnifying
party; provided, however, that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations be liable for
fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Persons of such other party; and such counsel shall, to the extent consistent with its professional responsibilities, cooperate with the
indemnifying party and any counsel designated by the indemnifying party.
|
(e) |
Nothing in this Section 7.3 is intended to limit any party's obligations contained in other parts of this Agreement or the VMTP Shares.
|
7.4 |
Amendments and Waivers
|
7.5 |
Successors and Assigns
|
7.6 |
Term of this Agreement
|
7.7 |
Governing Law
|
7.8 |
Waiver of Jury Trial
|
7.9 |
Counterparts
|
7.10 |
Beneficiaries
|
7.11 |
Entire Agreement
|
7.12 |
Relationship to the Articles Supplementary
|
7.13 |
Confidentiality
|
7.14 |
Severability
|
7.15 |
Consent Rights of the Majority Participants to Certain Actions.
|
(a) |
The termination by the Issuer of any Rating Agency or the selection of any Other Rating Agency, either in replacement for a Rating Agency or as an additional Rating Agency with respect to the VMTP Shares unless (i) immediately
following such termination, there would be at least one Rating Agency with respect to such VMTP Shares or (ii) it replaces the terminated Rating Agency with another Rating Agency and provides notice thereof to the Holders of such VMTP
Shares; provided that such replacement shall not occur unless such replacement Other Rating Agency shall have at the time of such replacement (i) published a rating for the VMTP Shares and (ii) entered into an agreement with the Issuer to
continue to publish such rating subject to the Rating Agency's customary conditions.
|
(c) |
The Issuer (i) creating or incurring or suffering to be incurred or to exist any lien on any other funds, accounts or other property held under the Charter or the Articles Supplementary, except as permitted by the Charter or the
Articles Supplementary or (ii) except for any lien for the benefit of the Custodian of the Issuer on the assets of the Issuer held by such Custodian or any lien arising by operation of law, pledging any portfolio security to secure any
senior securities or other liabilities to be incurred by the Issuer unless the securities pledged pursuant to all such pledges or other security arrangements are valued, for purposes of determining the value of the collateral required to
be posted or otherwise provided under all such security arrangements, (x) with respect to pledges to secure senior securities under any tender option bond trust of which the residual floating rate trust certificates will be owned by the
Issuer, in an aggregate amount not less than 70% of their aggregate market value at the time of inception of the trust (by references to prices determined by an independent third-party pricing service) and (y) with respect to all other
pledges to secure senior securities, in an aggregate amount not less than 70% of their aggregate market value from time to time (by reference to prices determined by an independent third-party pricing service); provided, that the required
collateral value (determined in accordance with clause (x) and/or (y) above, as applicable) under such security arrangements shall not exceed the market value of the exposure of each secured party to the credit of the Issuer; and provided
further, that it shall not require the approval of the Majority Participants if any such pledge or security interest in violation of the preceding sentence is created or incurred by the Issuer and the Issuer cures such violation within
five (5) Business Days of receiving notice of the existence thereof.
|
(e) |
Approval of any action to be taken pursuant to Section 5(c) of the Articles Supplementary.
|
NEUBERGER BERMAN MUNICIPAL FUND INC.
|
||||
By:
|
/s/ Brian Kerrane
|
|||
Name: Brian Kerrane
|
||||
Title: Chief Operating Officer and Vice President
|
||||
BANC OF AMERICA PREFERRED FUNDING CORPORATION
|
||||
By:
|
/s/ Michael Jentis
|
|||
Name: Michael Jentis
|
||||
Title: Authorized Signatory
|
Description of VMTP Shares: |
1,704 Neuberger Berman Municipal Fund Inc. VMTP Shares with a Liquidation Preference of $100,000 per share.
|
1.
|
Aberdeen Investment Management Inc.
|
2.
|
AllianceBernstein, L.P.
|
3.
|
American Century Investment Management, Inc.
|
4.
|
BMO Harris Financial Advisors, Inc.
|
5.
|
The Dreyfus Corporation
|
6.
|
BlackRock Advisors, LLC
|
7.
|
Capital Research and Management Company
|
8.
|
Charles Schwab Investment Management, Inc.
|
9.
|
Columbia Management Investment Advisors, LLC
|
10.
|
Cutwater Asset Management Corp.
|
11.
|
Delaware Management Business Trust
|
12.
|
Deutsche Investment Management Americas Inc.
|
13.
|
Eaton Vance Management
|
14.
|
Federated Investment Management Company
|
15.
|
Fidelity Management & Research Company
|
16.
|
First Investors Management Company, Inc.
|
17.
|
Franklin Advisers, Inc.
|
18.
|
GE Asset Management Incorporated
|
19.
|
Goldman Sachs Asset Management, L.P.
|
20.
|
Invesco Advisers Inc.
|
21.
|
John Hancock Advisers, LLC
|
22.
|
J.P. Morgan Investment Management Inc.
|
23.
|
Lord Abbett & Co. LLC
|
24.
|
MacKay Shields LLC
|
25.
|
Massachusetts Financial Services Company
|
26.
|
Morgan Stanley Investment Management Inc.
|
27.
|
McDonnell Investment Management, LLC
|
28.
|
Northern Trust Investments, Inc.
|
29.
|
Nuveen Fund Advisors, LLC
|
30.
|
OFI Global Asset Management, Inc.
|
31.
|
Payden & Rygel
|
32.
|
Pacific Investment Management Company LLC
|
33.
|
Principal Management Corporation
|
34.
|
Prudential Investment Management, Inc.
|
35.
|
Putnam Investment Management, LLC
|
36.
|
Silvercrest Asset Management Group, LLC
|
T Rowe Price Associate, Inc.
|
|
UBS Global Asset Management (Americas) Inc.
|
|
The Vanguard Group, Inc.
|
|
Waddell & Reed, Inc.
|
|
Western Asset Management Company
|
|
Wells Capital Management Incorporated
|
● |
it is registered under the Securities Act;
|
● |
it is offered and sold pursuant to Securities and Exchange Commission Rule 144A; 17 CFR 230.144A; or
|
● |
it can be sold with reasonable promptness at a price that corresponds reasonably to its fair value; and
|
● |
the obligor had adequate capacity to meet financial commitments under the security for the projected life of the asset or exposure, which capacity is presumed if the risk of default by the obligor is low and the full and timely
repayment of principal and interest is expected.
|
● |
it provides for repayment of principal and interest in any form including fixed and floating rate, zero interest, capital appreciation, discount, leases, and payment in kind; or
|
● |
it is for long-term or short-term financing purposes.
|
Attention:
|
General Counsel, Closed-End Funds
|
Date:
|
|||
Name of Transferee (use exact name in which Transferred Shares are to be registered):
|
|||
Authorized Signature
|
|||
Print Name and Title
|
|||
Address of Transferee for Registration of Transferred Shares:
|
|||
Transferee's taxpayer identification number:
|
|||
Reporting as of:
|
|
TOB Floaters: $
|
CUSIP
|
Portfolio
Name
|
Description
|
Market
Value
|
Par Value
|
Rating
|
State
|
[●]
|
[●]
|
[●]
|
[●]
|
[●]
|
[●]
|
[●]
|