1 |
NAMES
OF REPORTING PERSONS
| ||||
I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
| |||||
BANK OF AMERICA CORP /DE/ 56-0906609 | |||||
2 |
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
| (a) | o | ||
(b) | x | ||||
3 |
SEC
USE ONLY
| ||||
4 |
SOURCE
OF FUNDS
| ||||
WC | |||||
5 |
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(e)
or 2(f)
| x | |||
6 |
CITIZENSHIP
OR PLACE OF ORGANIZATION
| ||||
Delaware | |||||
NUMBER
OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
| 7 |
SOLE
VOTING POWER
| |||
0 | |||||
8 |
SHARED
VOTING POWER
| ||||
1,704 | |||||
9 |
SOLE
DISPOSITIVE POWER
| ||||
0 | |||||
10 |
SHARED
DISPOSITIVE POWER
| ||||
1,704 | |||||
11 |
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
| ||||
1,704 | |||||
12 |
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
| o | |||
13 |
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
| ||||
100%
| |||||
14 |
TYPE
OF REPORTING PERSON
| ||||
HC | |||||
1 |
NAMES
OF REPORTING PERSONS
| ||||
I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
| |||||
Banc of America Preferred Funding Corporation 75-2939570 | |||||
2 |
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
| (a) | o | ||
(b) | x | ||||
3 |
SEC
USE ONLY
| ||||
4 |
SOURCE
OF FUNDS
| ||||
WC | |||||
5 |
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(e)
or 2(f)
| o | |||
6 |
CITIZENSHIP
OR PLACE OF ORGANIZATION
| ||||
Delaware | |||||
NUMBER
OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
| 7 |
SOLE
VOTING POWER
| |||
0 | |||||
8 |
SHARED
VOTING POWER
| ||||
1,704 | |||||
9 |
SOLE
DISPOSITIVE POWER
| ||||
0 | |||||
10 |
SHARED
DISPOSITIVE POWER
| ||||
1,704 | |||||
11 |
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
| ||||
1,704 | |||||
12 |
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
| o | |||
13 |
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
| ||||
100%
| |||||
14 |
TYPE
OF REPORTING PERSON
| ||||
CO | |||||
Item 1. | Security and Issuer |
This Amendment No. 2 (this "Amendment") amends, as set forth below, the statement on Schedule 13D, dated July 1, 2014 and filed with the SEC on July 9, 2014 (the "Original Schedule 13D") as amended by Amendment No. 1 dated November 29, 2018 and filed with the SEC on December 3, 2018 ("Amendment No. 1"), for Bank of America Corporation ("BAC") and Banc of America Preferred Funding Corporation ("BAPFC") (collectively, the "Reporting Persons") with respect to the variable rate municipal term preferred shares ("VMTP Shares") of Neuberger Berman Municipal Fund Inc. (the "Issuer").
This Amendment is being filed in relation to (i) the redemption by the Issuer on April 1, 2019 of 90 VMTP Shares (CUSIP No. 64124P408) of the Issuer held by BAPFC and (ii) the execution of an Amended and Restated VMTP Purchase Agreement and a Registration Rights Agreement, each dated as of April 1, 2019 relating to the VMTP Shares (CUSIP No. 64124P408) of the Issuer. |
Item 2. | Identity and Background |
(a) | Item 2 of the Original Schedule 13D is hereby amended by deleting Schedule I and Schedule II referenced therein and replacing them with Schedule I and Schedule II included with this Amendment. |
(b) |
(c) |
(d) |
(e) |
(f) |
Item 3. |
Source
and Amount of Funds or Other Consideration
|
Item 4. |
Purpose
of Transaction
|
(a) |
(b) |
(c) |
(d) |
(e) |
(f) |
(g) |
(h) |
(i) |
(j) |
Item 5. |
Interest
in Securities of the Issuer
|
(a) |
(b) |
(c) |
Transaction Date | Shares or Units Purchased (Sold) | Price Per Share or Unit |
(d) |
(e) |
Item 6. |
Contracts,
Arrangements, Understandings or Relationships with Respect to Securities
of the Issuer
|
Item 6 of the Original Schedule 13D is hereby amended by deleting the sixth sentence and adding the following at the end of the first paragraph thereof:
"BAPFC has the right to cause the Company to register the VMTP Shares pursuant to a Registration Rights Agreement, dated April 1, 2019 between the Company and BAPFC." |
Item 7. |
Material
to Be Filed as Exhibits
|
Item 7 of the Original Schedule 13D is hereby amended by deleting Exhibit 99.1, Exhibit 99.2 and Exhibit 99.4 thereto and the insertion of the following exhibits:
"Exhibit Description of Exhibit 99.1 Joint Filing Agreement 99.2 Power of Attorney 99.4 Registration Rights Agreement dated April 1, 2019 between the Issuer and BAPFC 99.7 Amended and Restated VMTP Purchase Agreement dated April 1, 2019 between the Issuer and BAPFC" |
Bank of America Corporation | |||
April 03, 2019 | By: |
/s/
Ronnie Ojera | |
Attorney-in-fact | |||
Banc of America Preferred Funding Corporation | |||
April 03, 2019 | By: |
/s/
Michael Jentis | |
Authorized Signatory | |||
Name
|
Position with Bank of America Corporation
|
Principal Occupation
|
||
Brian T. Moynihan
|
Chairman of the Board, Chief Executive Officer, President and Director
|
Chairman of the Board, Chief Executive Officer, and President of Bank of America Corporation
|
||
Dean C. Athanasia
|
President, Preferred and Small Business Banking and Co-Head Consumer Banking
|
President, Preferred and Small Business Banking, Co-Head Consumer Banking of Bank of America Corporation
|
||
Catherine P. Bessant
|
Chief Operations and Technology Officer
|
Chief Operations and Technology Officer of Bank of America Corporation
|
||
Paul M. Donofrio
|
Chief Financial Officer
|
Chief Financial Officer of Bank of America Corporation
|
||
Geoffrey Greener
|
Chief Risk Officer
|
Chief Risk Officer of Bank of America Corporation
|
||
David Leitch
|
Global General Counsel
|
Global General Counsel of Bank of America Corporation
|
||
Thomas K. Montag
|
Chief Operating Officer
|
Chief Operating Officer of Bank of America Corporation
|
||
Thong M. Nguyen
|
President, Retail Banking and Co-Head, Consumer Banking
|
President, Retail Banking and Co-Head Consumer Banking of Bank of America Corporation
|
||
Andrea B. Smith
|
Chief Administrative Officer
|
Chief Administrative Officer of Bank of America Corporation
|
||
Sharon L. Allen
|
Director
|
Former Chairman of Deloitte LLP
|
||
Susan S. Bies
|
Director
|
Former Member, Board of Governors of the Federal Reserve System
|
||
Jack O. Bovender, Jr.
|
Lead Independent Director
|
Former Chairman and Chief Executive Officer of HCA Inc.
|
||
Frank P. Bramble, Sr.
|
Director
|
Former Executive Vice Chairman, MBNA Corporation
|
||
Pierre de Weck1
|
Director
|
Former Chairman and Global Head of Private Wealth Management, Deutsche Bank AG
|
||
Arnold W. Donald
|
Director
|
President and Chief Executive Officer, Carnival Corporation & plc
|
||
Linda P. Hudson
|
Director
|
Executive Officer, The Cardea Group, LLC and Former President and Chief Executive Officer of BAE Systems, Inc.
|
||
Monica C. Lozano
|
Director
|
Chief Executive Officer, College Futures Foundation and Former Chairman, US Hispanic Media Inc.
|
||
Thomas J. May
|
Director
|
Chairman, Viacom Inc.; Former Chairman, President, and Chief Executive Officer of Eversource Energy
|
||
Lionel L. Nowell, III
|
Director
|
Former Senior Vice President and Treasurer, PepsiCo Inc.
|
||
Clayton S. Rose
|
Director
|
President of Bowdoin College
|
||
Michael D. White
|
Director
|
Former Chairman, President and Chief Executive Officer of DIRECTV
|
||
Thomas D. Woods2
|
Director
|
Chairman, Hydro One Limited; Former Vice Chairman and Senior Vice President of Canadian Imperial Bank of Commerce
|
||
R. David Yost
|
Director
|
Former Chief Executive Officer of AmerisourceBergen Corp.
|
||
Maria T. Zuber
|
Director
|
Vice President for Research and E.A., Griswold Professor of Geophysics, MIT
|
Name
|
Position with Banc of America Preferred Funding Corporation
|
Principal Occupation
|
||
John J. Lawlor
|
Director and President
|
Managing Director, Municipal Markets and Public Sector Banking Executive of Merrill Lynch, Pierce, Fenner & Smith Incorporated and Bank of America, National Association
|
||
Edward H. Curland
|
Director and Managing Director
|
Managing Director, Municipal Markets Executive for Trading of Merrill Lynch, Pierce, Fenner & Smith Incorporated and Bank of America, National Association
|
||
Michael I. Jentis
|
Managing Director
|
Managing Director, Head of Sales – Public Finance of Merrill Lynch, Pierce, Fenner & Smith Incorporated and Bank of America, National Association
|
||
Mona Payton
|
Managing Director
|
Managing Director, Municipal Markets Executive for Short-Term Trading of Merrill Lynch, Pierce, Fenner & Smith Incorporated and Bank of America, National Association
|
||
Edward J. Sisk
|
Director and Managing Director
|
Managing Director, Public Finance Executive of Merrill Lynch, Pierce, Fenner & Smith Incorporated and Bank of America, National Association
|
||
John B. Sprung
|
Director
|
Corporate Director
|
||
David A. Stephens
|
Director and Managing Director
|
Managing Director, Executive for Public Finance and Public Sector Credit Products of Merrill Lynch, Pierce, Fenner & Smith Incorporated and Bank of America, National Association
|
(a)
|
Notice of Underwriting. If the Initiating Holder(s) intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Fund as a part of their request made pursuant to this Section 3, and the Fund shall include that information in the written notice referred to in Section 3.1 of this Agreement. The right of any Holder to request Registration pursuant to this Section 3 shall be conditioned upon such Holder's agreement to participate in the underwriting and the inclusion of that Holder's Registrable Securities in the underwriting to the extent provided herein.
|
(b)
|
Selection of Underwriter in Demand Registration. The Fund shall (together with all Holders proposing to distribute their securities through the underwriting) enter into an underwriting agreement in customary form for an underwritten offering made solely by selling shareholders with the underwriter or, if more than one, the lead underwriter acting as the representative of the underwriters (such underwriter or lead underwriter, in either case, the "Underwriters' Representative") selected for the underwriting by the Initiating Holder(s) with the consent of the Fund, not to be unreasonably withheld.
|
(c)
|
Marketing Limitation in Demand Registration. Notwithstanding any other provision of this Section 3, in the event the Underwriters' Representative advises the Fund in writing that market factors (including, without limitation, the aggregate number of VMTP Shares requested to be Registered, the general condition of the market, and the status of the Persons proposing to sell securities pursuant to the Registration) require a limitation of the number of shares to be underwritten, then the Fund shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the Registration and underwriting shall be allocated among all Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities requested to be included in the Registration by all such selling Holders (including the Initiating Holder(s)); provided, however, that the number of Registrable Securities to be included in any such underwriting held by Holders shall not be reduced unless all other securities of the Fund, its Affiliates and Neuberger Persons are first entirely excluded from the underwriting. Unless the prior written consent of the Majority Holders has been obtained, the number of the Registrable Securities included in any such underwriting shall not be reduced to less than 90% of the number of the Registrable Securities requested to be included. Any Registrable Securities or other securities excluded from the underwriting by reason of this Section 3.3(c) shall be withdrawn from the Registration. To facilitate the allocation of shares in accordance with the foregoing, the Fund or the underwriters may round the number of shares allocated to any Holder to the nearest one share.
|
(d)
|
Right of Withdrawal in Demand Registration. If any Holder of Registrable Securities (other than the Initiating Holder(s)) disapproves of the terms of the underwriting, such Holder may elect to withdraw therefrom by written notice to the Fund and the Underwriters' Representative proposing to distribute their securities through the underwriting, delivered at least 20 days prior to the effective date of the Registration Statement. The securities so withdrawn shall also be withdrawn from the Registration Statement.
|
(a)
|
(i) prepare and file a Registration Statement with the Commission which (x) shall be on Form N-2, if available, (y) shall be available for the sale or exchange of the Registrable Securities in accordance with the intended method or methods of distribution by the selling Holders thereof, and (z) shall comply as to form with the requirements of the applicable form and include all financial statements required by the Commission to be filed therewith and all other information reasonably requested by the Underwriters' Representative to be included therein relating to the underwriters and plan of distribution for the Registrable Securities, (ii) use its commercially reasonable efforts to cause such Registration Statement to become effective and remain effective for up to 90 days or, if earlier, until the Holder or Holders have completed the distribution thereto or withdrawn from such plan of distribution, (iii) cause each Registration Statement, as of the effective date of such Registration Statement, (x) to comply in all material respects with any requirements of the Securities Act and (y) not to contain any 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 and (iv) cause each Prospectus, as of the date thereof, (x) to comply in all material respects with any requirements of the Securities Act and (y) not to contain any 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;
|
(b)
|
subject to Section 6(a), prepare and file with the Commission such amendments and post-effective amendments to such Registration Statement as may be necessary to keep such Registration Statement effective for the applicable period set forth in Section 6(a)(ii); cause each such Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to applicable rules under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement during the applicable period set forth in Section 6(a)(ii) in accordance with the intended method or methods of distribution by the selling Holders thereof, as set forth in such Registration Statement;
|
(c)
|
furnish to each Holder for which the Registrable Securities are being registered and to each underwriter of an underwritten offering of the Registrable Securities, if any, without charge, as many copies of each Prospectus, including, without limitation, each preliminary Prospectus, and any amendments or supplements thereto and such other documents as such Holder or underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities; the Fund hereby consents to the use of the Prospectus, including, without limitation, each preliminary Prospectus, by each Holder for which the Registrable Securities are being registered and each underwriter of an underwritten Public Offering of the Registrable Securities, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or the preliminary Prospectus, as applicable;
|
(d)
|
(i) use its commercially reasonable efforts to register or qualify the Registrable Securities, no later than the time the applicable Registration Statement is declared effective by the Commission, under all applicable state securities or Blue Sky laws of such United States jurisdictions as the Underwriters' Representative, if any, or any Holder having Registrable Securities covered by a Registration Statement, shall reasonably request; (ii) use its commercially reasonable efforts to keep each such registration or qualification effective during the period such Registration Statement is required to be kept effective; and (iii) do any and all other acts and things which may be reasonably necessary or advisable to enable each underwriter, if any, and any such Holder to consummate the disposition in each such jurisdiction of such Registrable Securities the registration of which such Holder is requesting; provided, however, that the Fund shall not be obligated to qualify to do business or to a file a general consent to service of process in any such state or jurisdiction, unless the Fund is already subject to service in such jurisdiction and except as may be required by the Securities Act;
|
(e)
|
notify each Holder for which the Registrable Securities are being registered promptly, and, if requested by such Holder, confirm such advice in writing, (i) when such Registration Statement has become effective and when any post-effective amendments and supplements thereto become effective, (ii) of the issuance by the Commission or any state securities authority of any stop order, injunction or other order or requirement suspending the effectiveness of such Registration Statement or the initiation of any proceedings for that purpose, (iii) if, between the effective date of such Registration Statement and the closing of any sale of Registrable Securities covered thereby pursuant to any agreement to which the Fund is a party relating to such sale, the representations and warranties of the Fund contained in such agreement cease to be true and correct in all material respects or if the Fund receives any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, and (iv) of the happening of any event during the period such Registration Statement is effective as a result of which such Registration Statement or the related Prospectus contains any untrue statement of a material fact or omits to state any 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;
|
(f)
|
furnish to a designated single counsel for each of the underwriters, if any, and for the Holders for which the Registrable Securities are being registered, copies of any request by the Commission or any state securities authority for amendments or supplements to a Registration Statement and Prospectus or for additional information;
|
(g)
|
use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement at the earliest possible time;
|
(h)
|
upon request, furnish to the Underwriters' Representative of an underwritten Public Offering of the Registrable Securities, if any, without charge, at least one signed copy of such Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits; and furnish to each Holder for which the Registrable Securities are being registered, without charge, at least one conformed copy of each Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
|
(i)
|
upon the occurrence of any event contemplated by paragraph (e)(iv) of this Section, use commercially reasonable efforts to prepare a supplement or post-effective amendment to such Registration Statement or the related Prospectus, or any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, such Prospectus will not contain any 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 the light of the circumstances under which they were made, not misleading;
|
(j)
|
enter into customary agreements (including, in the case of an underwritten Public Offering, underwriting agreements in customary form for sales only by selling shareholders, and including provisions with respect to indemnification and contribution in customary form and consistent with the provisions relating to indemnification and contribution contained herein) and take all other customary and appropriate actions that are commercially reasonable in order to expedite or facilitate the disposition of such Registrable Securities in accordance with the plan of distribution set forth in the Registration Statement and the Prospectus, and in connection therewith:
|
(i)
|
in the case of any underwritten Public Offering, make such representations and warranties to (x) the underwriters and (y) insofar as they relate to the nature and the validity of the offering, the selling Holders of such Registrable Securities, in form, substance and scope as are customarily made by issuers to underwriters in similar underwritten offerings;
|
(ii)
|
in the case of any underwritten Public Offering, obtain opinions of counsel to the Fund and updates thereof addressed to (x) the underwriters and (y) insofar as they relate to the nature and the validity of the offering, each selling Holder, covering the matters customarily covered in opinions requested in similar underwritten offerings and such other matters as may be reasonably requested by underwriters and such Holders (and which opinions (in form, scope and substance) shall be reasonably satisfactory to the Underwriters' Representative, if any, and, where relevant, the Majority Holders of the Registrable Securities being sold);
|
(iii)
|
in the case of any underwritten Public Offering, obtain "comfort" letters or "agreed-upon procedures" letters and updates thereof from the Fund's independent certified public accountants addressed to the selling Holders of the Registrable Securities, if permissible, and underwriters, which letters shall be customary in form and shall cover matters of the type customarily covered in such letters to underwriters and such Holders in connection with firm commitment underwritten offerings;
|
(iv)
|
to the extent requested and customary for the relevant transaction, enter into a securities sales agreement with the selling Holders providing for, among other things, the appointment of such representative as agent for the selling Holders for the purpose of soliciting purchases of the Registrable Securities, which agreement shall be customary in form, substance and scope and shall contain customary representations, warranties and covenants relating to the nature and validity of the offering; and
|
(v)
|
deliver such customary documents and certificates as may be reasonably requested by a designated representative of the Majority Holders of the Registrable Securities being sold (the "Designated Representative") or by the Underwriters' Representative, if any.
|
(k)
|
make available for inspection by the Designated Representative and by any underwriters participating in any disposition pursuant to such Registration Statement and a single counsel or accountant retained by such Holders or by counsel to such underwriters, all relevant financial and other records, pertinent corporate documents and properties of the Fund and cause the respective officers, directors and employees of the Fund to supply all information reasonably requested by such Designated Representative, underwriter, counsel or accountant in connection with such Registration Statement;
|
(l)
|
within a reasonable time prior to the filing of any Registration Statement, any Prospectus, any amendment to a Registration Statement or amendment or supplement to a Prospectus, provide copies of such document to the selling Holders of the Registrable Securities and to counsel to such Holders and to the underwriter or underwriters of a underwritten Public Offering of the Registrable Securities, if any; fairly consider such reasonable changes in any such document prior to or after the filing thereof as the counsel to the Holders or the underwriter or the underwriters may request and not file any such document in a form to which the Majority Holders of the Registrable Securities being registered or any Underwriters' Representative shall reasonably object unless required by law; and make such of the representatives of the Fund as shall be reasonably requested by the Designated Representative or the Underwriters' Representative available for discussion of such document;
|
(m)
|
otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, including making available to its security holders an earnings statement covering at least 12 months which shall satisfy the provisions of the Securities Act and the rules thereunder;
|
(n)
|
cooperate and assist in any filings required to be made with FINRA and in the performance of any due diligence investigation by any underwriter in an underwritten offering; and
|
(o)
|
use its commercially reasonable efforts to facilitate the distribution and sale of any Registrable Securities to be offered pursuant to this Agreement, including without limitation by participating in domestic road show presentations, holding meetings with potential investors and taking such other actions as shall be reasonably requested by the Designated Representative or the lead managing underwriter of an underwritten offering.
|
(a)
|
The obligations of the Fund and the Shareholder and its Permitted Transferees 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). The rights of the Shareholder hereunder are separate from and in addition to any rights that any Holder of any VMTP Share may have under the terms of such VMTP Share or otherwise.
|
(b)
|
No failure or delay by the Fund or the Shareholder 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 Fund or the Shareholder in exercising any right, power or privilege under or in respect of the VMTP Shares shall affect the rights, powers or privileges of the Fund or the Shareholder 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.
|
Telephone: |
(212) 449-7358 (Visone, Blasiak, Irizarry, Jentis)
|
THE FUND:
Neuberger Berman Municipal Fund Inc.
By: /s/ Brian Kerrane
Name: Brian Kerrane
Title: Chief Operating Officer and Vice President
|
THE SHAREHOLDER:
Banc of America Preferred Funding Corporation
By: /s/ Thomas Visone
Name: Thomas Visone
Title: Authorized Signatory
|
CONTENTS
|
||
SECTION
|
PAGE
|
|
ARTICLE I DEFINITIONS
|
1
|
|
1.1
|
Incorporation of Certain Definitions by Reference and Interpretation
|
7
|
ARTICLE II PURCHASE AND TRANSFERS, COSTS AND EXPENSES; ADDITIONAL FEE
|
7
|
|
2.1
|
Purchase and Transfer of the VMTP Shares
|
7
|
2.2
|
Fees
|
9
|
2.3
|
Operating Expenses
|
9
|
2.4
|
Additional Fee for Failure to Comply with Reporting Requirement or Registration Rights Failure
|
9
|
ARTICLE III CONDITIONS TO AMENDMENT AND RESTATEMENT DATE
|
10
|
|
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE ISSUER
|
11
|
|
4.1
|
Existence
|
11
|
4.2
|
Authorization; Contravention
|
11
|
4.3
|
Binding Effect
|
11
|
4.4
|
Financial Information
|
12
|
4.5
|
Litigation
|
12
|
4.6
|
Consents
|
12
|
4.7
|
Placement of VMTP Shares
|
13
|
4.8
|
Complete and Correct Information
|
15
|
4.9
|
1940 Act Registration
|
16
|
4.10
|
Effective Leverage Ratio; Asset Coverage
|
16
|
4.11
|
Credit Quality
|
16
|
4.12
|
Due Diligence
|
16
|
4.13
|
Certain Fees
|
17
|
4.14
|
Eligible Assets
|
17
|
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
|
17
|
|
5.1
|
Existence
|
17
|
5.2
|
Authorization; Contravention
|
17
|
5.3
|
Binding Effect
|
18
|
5.4
|
Restricted Securities; Own Account
|
18
|
5.5
|
Litigation
|
18
|
5.6
|
Consents
|
18
|
5.7
|
Purchaser Status
|
19
|
5.8
|
Experience of the Purchaser
|
19
|
5.9
|
Certain Transactions
|
19
|
5.10
|
Due Diligence
|
19
|
5.11
|
Certain Fees
|
19
|
ARTICLE VI COVENANTS OF THE ISSUER
|
19
|
|
6.1
|
Information
|
20
|
6.2
|
No Amendment or Certain Other Actions Without Consent of the Purchaser
|
22
|
6.3
|
Maintenance of Existence
|
22
|
6.4
|
Tax Status of the Issuer
|
23
|
6.5
|
Payment Obligations
|
23
|
6.6
|
Compliance With Law
|
23
|
6.7
|
Maintenance of Approvals: Filings, Etc.
|
23
|
6.8
|
Inspection Rights
|
23
|
6.9
|
Litigation, Etc
|
24
|
6.10
|
1940 Act Registration
|
24
|
6.11
|
Credit Quality
|
24
|
6.12
|
Maintenance of Effective Leverage Ratio
|
24
|
6.13
|
Redemption and Paying Agent
|
25
|
6.14
|
Cooperation in the Sale of the VMTP Shares
|
25
|
6.15
|
Use of Proceeds
|
25
|
6.16
|
Securities Depository
|
25
|
6.17
|
Future Agreements
|
25
|
6.18
|
Eligible Assets
|
26
|
6.19
|
Placement of VMTP Shares
|
26
|
ARTICLE VII MISCELLANEOUS
|
26
|
|
7.1
|
Notices
|
26
|
7.2
|
No Waivers
|
28
|
7.3
|
Expenses and Indemnification
|
28
|
7.4
|
Amendments and Waivers
|
31
|
7.5
|
Successors and Assigns
|
31
|
7.6
|
Term of this Agreement
|
31
|
7.7
|
Governing Law
|
32
|
7.8
|
Waiver of Jury Trial
|
32
|
7.9
|
Counterparts
|
32
|
7.10
|
Beneficiaries
|
32
|
7.11
|
Entire Agreement
|
32
|
7.12
|
Relationship to the Articles Supplementary
|
32
|
7.13
|
Confidentiality
|
33
|
7.14
|
Severability
|
33
|
7.15
|
Consent Rights of the Majority Participants to Certain Actions
|
34
|
SCHEDULE I
|
Schedule 1-1
|
|
SCHEDULE 2
|
Schedule 2-1
|
|
EXHIBIT A
|
FORMS OF OPINIONS OF COUNSEL FOR THE ISSUER
|
A-1
|
EXHIBIT A-1
|
FORM OF CORPORATE AND 1940 ACT OPINION
|
A-1-1
|
EXHIBIT A-2
|
FORM OF TAX OPINION
|
A-2-1
|
EXHIBIT A-3
|
FORM OF LOCAL COUNSEL OPINION
|
A-3-1
|
EXHIBIT A-4
|
FORM OF NEGATIVE ASSURANCE LETTER
|
A-4-1
|
EXHIBIT B
|
ELIGIBLE ASSETS
|
B-1
|
EXHIBIT C
|
TRANSFEREE CERTIFICATE
|
C-1
|
EXHIBIT D
|
INFORMATION TO BE PROVIDED BY THE ISSUER
|
D-1
|
ANNEX A
|
MATERIAL LITIGATION STATEMENT
|
ANNEX A
|
1.1
|
Incorporation of Certain Definitions by Reference and Interpretation
|
2.1
|
Purchase and Transfer of the VMTP Shares
|
(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.
|
(b)
|
The Purchaser agrees that it may offer, sell, transfer or otherwise dispose of the VMTP Shares in compliance with the Securities Act and applicable state securities laws only in whole shares and only (i)(1) to Persons that it reasonably believes are QIBs that are: (a) registered closed-end management investment companies, the shares of which are traded on a national securities exchange and registered open-end management investment companies, in each case, that (X) are either sponsored or managed by an entity listed on Schedule 2 of this Purchase Agreement or any other entity that is controlled by, controlling or under common control with an entity listed on Schedule 2 of this Purchase Agreement and (Y) invest primarily in municipal obligations (each, a "Registered Investment Company"); (b) banks or entities that are 100% direct or indirect subsidiaries of banks' publicly traded parent holding companies (collectively, "Banks"); or (c) insurance companies, in each case, pursuant to Rule 144A or another available exemption from registration under the Securities Act, in a manner not involving any public offering within the meaning of Section 4(a)(2) of the Securities Act, (2) to tender option bond trusts in which all investors are Persons that the Purchaser reasonably believes are QIBs that are Registered Investment Companies, Banks or insurance companies (or, in the case of a tender option bond trust in which the Holder or an affiliate of the Holder retains a residual interest), or (3) to other investors with the prior written consent of the Issuer and (ii) unless the prior written consent of each of the Issuer and the Majority Participants has been obtained, not to Neuberger Persons if such Neuberger Persons would, after such sale and transfer, own more than 20% of the Outstanding VMTP Shares. Any transfer in violation of the foregoing restrictions shall be void ab initio. In the event that the Purchaser intends to transfer the VMTP Shares, the Purchaser shall provide written notice to the Fund, which notice shall be signed by the Purchaser, indicating the Purchaser's intent to transfer the VMTP Shares and the name of the intended transferee at least three (3) Business Days in advance of the transfer. In connection with any transfer of the VMTP Shares, each transferee (including, in the case of a tender option bond trust, the depositor or trustee or other Person thereunder acting on behalf of such transferee) will be required to deliver to the Issuer a transferee certificate set forth as Exhibit C to this Agreement no later than the date of the transfer. The foregoing restrictions on transfer shall not apply to any VMTP Shares registered under the Securities Act pursuant to the Registration Rights Agreement or any subsequent transfer of such registered VMTP Shares thereafter.
|
(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.
|
(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.
|
2.2
|
Fees
|
2.3
|
Operating Expenses
|
2.4
|
Additional Fee for Failure to Comply with Reporting Requirement or Registration Rights Failure
|
(a)
|
For so long as the Purchaser is a Holder or Designated Owner of any Outstanding VMTP Shares, if the Issuer fails to comply with the reporting requirements set forth in Sections 6.1(o) and 6.1(p) (except as a result of a Force Majeure Exception) and such failure is not cured within seven (7) Business Days after written notification to the Issuer by the Purchaser of such failure (a "Reporting Failure") or a Registration Rights Failure occurs, and such failure is not cured within seven (7) Business Days after written notification to the Issuer by the Purchaser of such failure, the Issuer shall pay to the Purchaser on the Dividend Payment Date occurring in the month immediately following a month in which either such Reporting Failure or Registration Failure (either, a "Failure") continues a fee, calculated in respect of each Week (or portion thereof) during such month in respect of a Failure and beginning on the date of such Failure, equal to the product of (i) the Fee Rate, times (ii) the aggregate average daily Liquidation Preference of the VMTP Shares held by the Purchaser during such Week or portion thereof, times (iii) the quotient of the number of days in such Week or portion thereof divided by the number of calendar days in the year in which such Week or portion thereof occurs. Notwithstanding the foregoing, in no event shall (i) the fee payable pursuant to this Section 2.4 hereunder for any Week plus the Applicable Spread on the VMTP Shares for such Week exceed an amount (exclusive of any Gross-Up Payment) equal to the product of (x) 15%, times (y) the aggregate average daily Liquidation Preference of the VMTP Shares held by the Purchaser during such Week or portion thereof, times (z) the quotient of the number of days in such Week or portion thereof divided by the number of calendar days in the year in which such Week or portion thereof occurs; (ii) the fee payable pursuant to this Section 2.4 for any Week plus the amount of dividends payable at the Dividend Rate for the VMTP Shares for such Week exceed an amount equal to the product of (aa) 15%, times (bb) the aggregate average daily Liquidation Preference of the VMTP Shares held by the Purchaser during such Week or portion thereof, times (cc) the quotient of the number of days in such Week or portion thereof divided by the number of calendar days in the year in which such Week or portion thereof occurs; or (iii) the Issuer be required to calculate or pay a fee in respect of more than one Failure in any Week.
|
(a)
|
this Agreement shall have been duly executed and delivered by the parties hereto;
|
(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;
|
(c)
|
receipt by the Purchaser of executed originals, or copies certified by a duly authorized officer of the Issuer to be in full force and effect and not otherwise amended, of all Related Documents, as in effect on the Effective Date (or the Amendment and Restatement Date, as the case may be), and an incumbency certificate with respect to the authorized signatories thereto;
|
(d)
|
receipt by the Purchaser of opinions of counsel for the Issuer, substantially to the effect of Exhibit A;
|
(e)
|
except as disclosed in Annex A hereto, there shall not be any pending or overtly threatened material litigation against the Issuer (unless such pending or threatened litigation has been determined by the Purchaser to be acceptable);
|
(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;
|
(g)
|
the Purchaser, in its reasonable discretion, shall be satisfied that no change in law, rule or regulation (or their interpretation or administration), in each case, shall have occurred which will adversely affect the consummation of the transaction contemplated by this Agreement;
|
(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
|
(i)
|
there shall have been delivered to the Purchaser such information and copies of documents, approvals (if any) and records certified, where appropriate, of corporate proceedings as the Purchaser may have requested relating to the Issuer's entering into and performing this Agreement and the other Related Documents to which the Issuer is a party, and the transactions contemplated hereby and thereby.
|
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.
|
(b)
|
As of the date of this Agreement, the VMTP Shares will satisfy the eligibility requirements of Rule 144A(d)(3) under the Securities Act, and no securities of the same class (within the meaning of Rule 144A(d)(3) under the Securities Act) as the VMTP Shares are listed on any national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system.
|
(c)
|
Neither the Issuer, nor any Person acting on its behalf, has, directly or indirectly, made offers or sales of any security (as defined in the Securities Act), or solicited offers to buy any security, under circumstances that would require the registration of the VMTP Shares under the Securities Act (except for the circumstances set forth in the Registration Rights Agreement).
|
(d)
|
The Issuer's directors and officers, errors and omissions insurance policy and its fidelity bond required by Rule 17g-1 under the 1940 Act are in full force and effect; the Issuer is in compliance with the terms of such policy and fidelity bond in all material respects; and there are no claims by the Issuer under any such policy or fidelity bond as to which any insurance company is denying liability or defending under a reservation of rights clause; the Issuer has not been refused any insurance coverage sought or applied for; and the Issuer has no reason to believe that it will not be able to renew its existing insurance coverage and fidelity bond as and when such coverage and fidelity bond expires or to obtain similar coverage and fidelity bond from similar insurers as may be necessary to continue its business at a cost that would not have a material adverse effect on the condition (financial or otherwise), business prospects, earnings, business, properties, net assets or results of operations of the Issuer (other than as a result of a change in the financial markets generally), whether or not arising from transactions in the ordinary course of business.
|
(e)
|
The Issuer maintains and will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management's general or specific authorization and with the investment objectives, policies and restrictions of the Issuer and the applicable requirements of the 1940 Act, the rules and regulations thereunder and the Code; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles in the United States, to calculate net asset value, to maintain accountability for assets, and to maintain material compliance with the books and records requirements under the 1940 Act and rules and regulations thereunder; (iii) access to assets is permitted only in accordance with management's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals, and appropriate action is taken with respect to any differences. The Issuer employs "internal controls over financial reporting" (as such term is defined in Rule 30a-3 under the 1940 Act) and such internal controls over financial reporting are effective as required the 1940 Act and the rules and regulations thereunder. The Issuer is not aware of any material weakness in its internal control over financial reporting.
|
(f)
|
The Issuer maintains "disclosure controls and procedures" (as such term is defined in Rule 30a-3 under the 1940 Act); such disclosure controls and procedures are effective as required under the 1940 Act and the rules and regulations thereunder.
|
(g)
|
The Issuer has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in violation of federal securities laws, in stabilization or manipulation of the price of any security of the Issuer to facilitate the sale or resale of the VMTP Shares, and the Issuer is not aware of any such action taken or to be taken by any affiliates of the Issuer.
|
(h)
|
Each of the Custodian Agreement, the investment management agreement between with Adviser and the Issuer (the "Investment Management Agreement"), the Redemption and Paying Agent Agreement and the other Related Documents complies in all material respects with all applicable provisions of the 1940 Act and the rules and regulations thereunder and the Advisers Act of 1940 and the rules and regulations thereunder, and the Issuer's directors and stockholders have approved the Investment Management Agreement in accordance with Sections 15(a) and 15(c), respectively, of the 1940 Act.
|
(i)
|
The Issuer has adopted and implemented written policies and procedures reasonably designed to prevent violation of the Federal Securities Laws (as that term is defined in Rule 38a-1 under the 1940 Act) by the Issuer, including policies and procedures that provide oversight of compliance by each investment adviser and transfer agent of the Issuer.
|
(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:
|
(i)
|
the "Note Box" on the bottom of the "Security Display" page describing the VMTP Shares will state: "Iss'd Under 144A."
|
(ii)
|
the "Security Display" page will have flashing a red indicator "See Other Available Information."
|
(iii)
|
the indicator will link to the "Additional Security Information" page, which will state that the securities "are being offered in reliance on the exemption from registration under Rule 144A of the Securities Act to persons who are qualified institutional buyers (as defined in Rule 144A under the Securities Act)."
|
(k)
|
The Issuer has instructed The Depository Trust Company ("DTC") to take these or similar steps with respect to the VMTP Shares: the DTC 20-character security descriptor and 48-character additional descriptor will indicate that sales are limited to QIBs.
|
(l)
|
The Issuer has confirmed that CUSIP has established a "fixed field" attached to the CUSIP number for the VMTP Shares containing the "144A" indicator.
|
(m)
|
The Issuer is not in violation or default of any provision of its Charter or the Articles Supplementary, or in material violation of (i) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject or (ii) any material statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Issuer or any of its properties, except to the extent that the same could not be reasonably expected to give rise to a Material Adverse Effect.
|
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
|
Experience of the Purchaser
|
5.9
|
Certain Transactions
|
5.10
|
Access to Information
|
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;
|
(b)
|
notice of any change in (including being put on Credit Watch or Watchlist), or suspension or termination of, the rating on the VMTP Shares by any Rating Agency (and any corresponding change in the Rating Agency Guidelines applicable to the VMTP Shares associated with any such change in the rating from any Rating Agency) or any change of a Rating Agency rating the VMTP Shares as promptly as practicable upon the occurrence thereof;
|
(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)
|
notice of any proxy solicitation of stockholders by the Issuer, which may be satisfied by delivery of the proxy statement itself, as soon as reasonably practicable, but in no event later than five (5) Business Days after the mailing thereof to all stockholders;
|
(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;
|
(o)
|
on the fifteenth (15th) Business Day following each Calculation Date (each a "Portfolio Reporting Date"), a report of portfolio holdings of the Issuer as of the Calculation Date immediately preceding each such Portfolio Reporting Date, prepared on a basis substantially consistent with the periodic reports of portfolio holdings of the Issuer prepared for financial reporting purposes;
|
(p)
|
on the fifteenth (15th) Business Day following each Calculation Date and last day of each month, the information set forth in Exhibit D to this Agreement and a calculation of the Effective Leverage Ratio and the Asset Coverage of the Issuer in each case, as of the Calculation Date; and upon the failure of the Issuer to maintain Asset Coverage as provided in Section 6(a) of the Articles Supplementary or the Effective Leverage Ratio as required by Section 6(c) of the Articles Supplementary, notice of such failure within one (1) Business Day of the occurrence thereof provided that the methodology for determining Market Value for purposes of the Effective Leverage Ratio and Asset Coverage that is reported to the Purchaser shall be consistent with the methodology for determining Market Value that is utilized for Asset Coverage that is reported to a Rating Agency and regulators; and
|
(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:
|
(b)
|
if to the Purchaser:
|
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.
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(d)
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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.
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(e)
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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.
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7.4
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Amendments and Waivers
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7.5
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Successors and Assigns
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7.6
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Term of this Agreement
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7.7
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Governing Law
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7.8
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Waiver of Jury Trial
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7.9
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Counterparts
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7.10
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Beneficiaries
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7.11
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Entire Agreement
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7.12
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Relationship to the Articles Supplementary
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7.13
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Confidentiality
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7.14
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Severability
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7.15
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Consent Rights of the Majority Participants to Certain Actions.
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(a)
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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.
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(b)
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The Issuer issuing or suffering to exist any "senior security" (as defined in the 1940 Act as of the date hereof, but not including a Derivative Contract, or, in the event such definition shall be amended, with such changes to the definition thereof as consented to by the Majority Participants) other than the VMTP Shares issued on the Effective Date or indebtedness for borrowed money of the Issuer, except (i) borrowings for temporary purposes in an amount not to exceed 5% of the assets of the Issuer, which borrowings are repaid within sixty (60) days, (ii) the issuance of senior securities or the incurrence of indebtedness for borrowed money, the proceeds of which will be used for the redemption or repurchase of the VMTP Shares and costs incurred in connection therewith, (iii) the Issuer's issuance of tender option bonds or creation or a tender option bond trust, if any, and (iv) as may be otherwise approved or consented to by the Majority Participants, provided that if any such "senior security" is created or incurred by the Issuer it shall not require the approval of the Majority Participants if the Issuer redeems, retires or terminates such "senior security" or otherwise cures such non-compliance within five (5) Business Days of receiving notice of the existence thereof.
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(c)
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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.
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(d)
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Approval of any amendment, alteration or repeal of any provision of the Charter or the Articles Supplementary, whether by merger, consolidation or otherwise, that would materially and negatively affect any preference, right or power of the VMTP Shares differentially from the rights of the holders of the Common Shares; or
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(e)
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Approval of any action to be taken pursuant to Section 5(c) of the Articles Supplementary.
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Description of VMTP Shares: |
1,704 Neuberger Berman Municipal Fund Inc. VMTP Shares with a Liquidation Preference of $100,000 per share.
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SCHEDULE 2
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1. Aberdeen Investment Management Inc.
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2. AllianceBernstein, L.P.
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3. American Century Investment Management, Inc.
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4. BMO Harris Financial Advisors, Inc.
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5. The Dreyfus Corporation
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6. BlackRock Advisors, LLC
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7. Capital Research and Management Company
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8. Charles Schwab Investment Management, Inc.
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9. Columbia Management Investment Advisors, LLC
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10. Cutwater Asset Management Corp.
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11. Delaware Management Business Trust
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12. Deutsche Investment Management Americas Inc.
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13. Eaton Vance Management
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14. Federated Investment Management Company
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15. Fidelity Management & Research Company
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16. First Investors Management Company, Inc.
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17. Franklin Advisers, Inc.
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18. GE Asset Management Incorporated
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19. Goldman Sachs Asset Management, L.P.
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20. Invesco Advisers Inc.
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21. John Hancock Advisers, LLC
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22. J.P. Morgan Investment Management Inc.
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23. Lord Abbett & Co. LLC
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24. MacKay Shields LLC
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25. Massachusetts Financial Services Company
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26. Morgan Stanley Investment Management Inc.
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27. McDonnell Investment Management, LLC
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28. Northern Trust Investments, Inc.
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29. Nuveen Fund Advisors, LLC
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30. OFI Global Asset Management, Inc.
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31. Payden & Rygel
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32. Pacific Investment Management Company LLC
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33. Principal Management Corporation
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34. Prudential Investment Management, Inc.
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35. Putnam Investment Management, LLC
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36. Silvercrest Asset Management Group, LLC
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37. T Rowe Price Associate, Inc.
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38. UBS Global Asset Management (Americas) Inc.
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39. The Vanguard Group, Inc.
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40. Waddell & Reed, Inc.
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41. Western Asset Management Company
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42. Wells Capital Management Incorporated
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i.
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"Municipal securities", defined as obligations of a State, the District of Columbia, a U.S. territory, or a political subdivision thereof and including general obligations, limited obligation bonds, revenue bonds, and obligations that satisfy the requirements of section 142(b)(1) of the Internal Revenue Code of 1986 issued by or on behalf of any State, the District of Columbia, any U.S. territory or any political subdivision thereof, including any municipal corporate instrumentality of 1 or more States, or any public agency or authority of any State, the District of Columbia, any U.S. territory or any political subdivision thereof. The purchase of any municipal security will be based upon the Adviser's assessment of an asset's relative value in terms of current yield, price, credit quality, and future prospects; and the Adviser will monitor the creditworthiness of the Issuer's portfolio investments and analyze economic, political and demographic trends affecting the markets for such assets. Eligible Assets shall include any municipal securities that at the time of purchase are paying scheduled principal and interest or if at the time of purchase are in payment default, then in the sole judgment of the Adviser are expected to produce payments of principal and interest whose present value exceeds the purchase price. For the avoidance of doubt, Municipal Securities shall include municipal variable rate demand obligations guaranteed by the Federal Home Loan Banks.
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ii.
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Debt obligations of the United States.
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iii.
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Debt obligations issued, insured, or guaranteed by a department or an agency of the U.S. Government, if the obligation, insurance, or guarantee commits the full faith and credit of the United States for the repayment of the obligation.
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iv.
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Debt obligations of the Washington Metropolitan Area Transit Authority guaranteed by the Secretary of Transportation under Section 9 of the National Capital Transportation Act of 1969.
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v.
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Debt obligations of the Federal Home Loan Banks.
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vi.
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Debt obligations, participations or other instruments of or issued by the Federal National Mortgage Association or the Government National Mortgage Association.
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vii.
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Debt obligations which are or ever have been sold by the Federal Home Loan Mortgage Corporation pursuant to sections 305 or 306 of the Federal Home Loan Mortgage Corporation Act.
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viii.
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Debt obligations of any agency named in 12 U.S.C. § 24(Seventh) as eligible to issue obligations that a national bank may underwrite, deal in, purchase and sell for the bank's own account, including qualified Canadian government obligations.
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ix.
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Debt obligations of issuers other than those specified in (i) through (viii) above that are "investment grade" and that are "marketable." For these purposes, an obligation is:
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●
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it is registered under the Securities Act;
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●
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it is offered and sold pursuant to Securities and Exchange Commission Rule 144A; 17 CFR 230.144A; or
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●
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it can be sold with reasonable promptness at a price that corresponds reasonably to its fair value; and
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●
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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.
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x.
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Certificates or other securities evidencing ownership interests in a municipal bond trust structure (generally referred to as a tender option bond structure) that invests in (a) debt obligations of the types described in (i) above or (b) depository receipts reflecting ownership interests in accounts holding debt obligations of the types described in (i) above.
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xi.
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The bonds, notes and other debt securities referenced in (A) above shall be defined as Eligible Assets. An asset shall not lose its status as an Eligible Asset solely by virtue of the fact that:
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●
|
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
|
●
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it is for long-term or short-term financing purposes.
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i.
|
Interest rate derivatives;
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ii.
|
Swaps, futures, forwards, structured notes, options and swaptions related to Eligible Assets or on an index related to Eligible Assets; or
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iii.
|
Credit default swaps.
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i.
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Shares of other investment companies (open- or closed-end funds and ETFs) the assets of which consist entirely of Eligible Assets based on the Adviser's assessment of the assets of each such investment company taking into account the investment company's most recent publicly available schedule of investments and publicly disclosed investment policies.
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ii.
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Cash.
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iii.
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Repurchase agreements on assets described in A above.
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iv.
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Taxable fixed-income securities, for the purpose of acquiring control of an issuer whose municipal bonds (a) the Issuer already owns and (b) have deteriorated or are expected shortly to deteriorate that such investment should enable the Issuer to better maximize its existing investment in such issuer, provided that the Issuer may invest no more than 0.5% of its total assets in such securities.
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CUSIP
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Portfolio Name
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Description
|
Market Value
|
Par Value
|
Rating
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State
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[l]
|
[l]
|
[l]
|
[l]
|
[l]
|
[l]
|
[l]
|