<R>As filed with the Securities and Exchange Commission on September 10, 2001 |
Securities Act File No. 333-65446
Investment Company Act File No. 811-7642</R> |
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SECURITIES AND EXCHANGE COMMISSION |
Washington, DC 20549 |
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FORM N-14 |
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933 |
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<R> | Pre-Effective Amendment No. 1 | | X | </R> |
Post-Effective Amendment No. | | | |
(Check appropriate box or boxes) |
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MuniAssets Fund, Inc. |
(Exact Name of Registrant as Specified in Charter) |
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(609) 282-2800
(Area Code and Telephone Number) |
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800 Scudders Mill Road
Plainsboro, New Jersey 08536 (Address of Principal Executive Offices: Number, Street, City, State, Zip Code) |
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Terry K. Glenn
MuniAssets Fund, Inc. 800 Scudders Mill Road, Plainsboro, New Jersey 08536 Mailing Address: PO Box 9011, Princeton, New Jersey 08543-9011 |
(Name and Address of Agent for Service) |
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Copies to : |
Leonard B. Mackey, Jr.
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Frank P. Bruno, Esq.
SIDLEY AUSTIN BROWN & WOOD LLP One World Trade Center New York, New York 10048-0557 |
<R>Philip L. Kirstein, Esq.</R>
FUND ASSET MANAGEMENT, L.P. 800 Scudders Mill Road Plainsboro, New Jersey 08543-9011 |
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Approximate Date of Proposed Public Offering: As soon as practicable after the Registration Statement becomes effective under the Securities Act of 1933. |
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Calculation of Registration Fee Under the Securities Act of 1933 |
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Title Of Securities Being Registered |
Amount being
Registered (1) |
Proposed
Maximum Offering Price Per Unit(1) |
Proposed
Maximum Aggregate Offering Price (1) |
Amount of
Registration Fee (2) |
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Common Stock ($.10 par value) | 11,079,988 | $13.07 | $144,815,443 | $36,204 |
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(1) | Estimated solely for the purpose of calculating the filing fee. |
(2) | Previously paid by wire transfer to the designated lockbox of the Securities and Exchange Commission in Pittsburgh, Pennsylvania. |
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The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. |
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MUNIASSETS FUND, INC.
MERRILL LYNCH HIGH INCOME MUNICIPAL BOND FUND, INC. P.O. BOX 9011 PRINCETON, NEW JERSEY 08543-9011 |
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NOTICE OF ANNUAL MEETING OF STOCKHOLDERS OF MUNIASSETS FUND, INC. |
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
OF
MERRILL LYNCH HIGH INCOME MUNICIPAL BOND FUND, INC. |
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To Be Held on October 24, 2001 |
T O T HE S TOCKHOLDERS OF |
M
UNI
A
SSETS
F
UND
, I
NC
.
M ERRILL L YNCH H IGH I NCOME M UNICIPAL B OND F UND , I NC .: |
NOTICE IS HEREBY GIVEN that an annual meeting of stockholders of MuniAssets Fund, Inc. (MuniAssets) and a special meeting of stockholders of Merrill Lynch High Income Municipal Bond Fund, Inc. (High Income Municipal) (together, the Meetings) will be held at the offices of Fund Asset Management, L.P. and Merrill Lynch Investment Managers, L.P., respectively, 800 Scudders Mill Road, Plainsboro, New Jersey on Wednesday, October 24, 2001 at 9:00 a.m. Eastern time (MuniAssets) and 10:00 a.m. Eastern time (High Income Municipal) for the following purposes: |
For the stockholders of MuniAssets and High Income Municipal: |
(1) To approve or disapprove an Agreement and Plan of Reorganization (the Agreement and Plan) contemplating (i) the acquisition of substantially all of the assets and the assumption of substantially all of the liabilities of High Income Municipal by MuniAssets, in return for newly issued shares of common stock of MuniAssets, and (ii) the distribution by High Income Municipal of such MuniAssets common stock to the holders of common stock of High Income Municipal (plus cash in lieu of fractional shares). A vote in favor of this proposal also will constitute a vote in favor of the liquidation and dissolution of High Income Municipal under Maryland corporate law and the termination of High Income Municipals registration under the Investment Company Act of 1940, as amended; |
For the stockholders of MuniAssets only: |
(2) To elect two Class I Directors of MuniAssets to serve for a term of three years; and |
For the stockholders of both Funds: |
(3) To transact such other business as properly may come before the Meetings or any adjournment thereof. |
The Boards of Directors of MuniAssets and High Income Municipal have fixed the close of business on August 27, 2001 as the record date for the determination of stockholders entitled to notice of, and to vote at, the Meetings or any adjournment thereof. |
A complete list of the stockholders of MuniAssets and High Income Municipal entitled to vote at the Meetings will be available and open to the examination of any stockholder of MuniAssets or High Income Municipal, respectively, for any purpose germane to the Meetings during ordinary business hours from and after October 10, 2001, at the offices of each Fund, 800 Scudders Mill Road, Plainsboro, New Jersey. |
You are cordially invited to attend the applicable Meeting. Stockholders who do not expect to attend the Meetings in person are requested to complete, date and sign the enclosed form of proxy and return it promptly in the envelope provided for that purpose. If you have been provided with the opportunity on your proxy card or voting instruction form to provide voting instructions via telephone or the Internet, please take advantage of these prompt and efficient voting options. The enclosed proxy is being solicited on behalf of the Board of Directors of MuniAssets or High Income Municipal, as applicable. |
<R>If you have any questions regarding the enclosed proxy material or need assistance in voting your shares of common stock, please contact our proxy solicitor, Georgeson Shareholder at 1-888-856-1572.</R> |
By Order of the Boards of Directors,
A
LICE
A. P
ELLEGRINO
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<R>Plainsboro, New Jersey
Dated: September 10, 2001</R> |
<R></R> |
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JOINT PROXY STATEMENT AND PROSPECTUS
MUNIASSETS FUND, INC. MERRILL LYNCH HIGH INCOME MUNICIPAL BOND FUND, INC. P.O. BOX 9011 PRINCETON, NEW JERSEY 08543-9011 (609) 282-2800 |
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ANNUAL MEETING OF STOCKHOLDERS OF MUNIASSETS FUND, INC. |
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SPECIAL MEETING OF STOCKHOLDERS OF
MERRILL LYNCH HIGH INCOME MUNICIPAL BOND FUND, INC. |
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To Be Held on October 24, 2001 |
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This Joint Proxy Statement and Prospectus is furnished to you as a stockholder of one or both of the funds listed above. An annual meeting of stockholders of MuniAssets Fund, Inc. (MuniAssets) and a special meeting of stockholders of Merrill Lynch High Income Municipal Bond Fund, Inc. (High Income Municipal) will be held on October 24, 2001 (each, a Meeting and together, the Meetings) to consider the items listed below and discussed in greater detail elsewhere in this Joint Proxy Statement and Prospectus. The Board of Directors of each of the funds is requesting its stockholders to submit a proxy to be used at the applicable Meeting to vote the shares held by the stockholder submitting the proxy. |
The proposals to be considered at the Meetings are: |
For stockholders of MuniAssets and High Income Municipal:
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For stockholders of MuniAssets only: |
2. To elect two Class I Directors of MuniAssets to serve for a term of three years; and |
For the stockholders of both MuniAssets and High Income Municipal: |
3. To transact such other business as may properly come before the Meetings or any adjournment thereof. |
The Agreement and Plan of Reorganization that you are being asked to consider involves a transaction that will be referred to in this Joint Proxy Statement and Prospectus as the Reorganization. The Reorganization involves the combination of two funds into one. The two funds are: |
MuniAssets, which will be the surviving fund, and |
High Income Municipal |
(continued on next page) |
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The Securities and Exchange Commission
has not approved or disapproved these securities
or passed upon the adequacy of this Joint Proxy Statement and Prospectus. Any representation to the contrary is a criminal offense. |
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<R>The date of this Joint Proxy Statement and Prospectus is September 10, 2001.</R> |
MuniAssets and High Income Municipal are sometimes referred to herein collectively as the Funds and individually as a Fund, as the context requires. The fund resulting from the Reorganization is sometimes referred to herein as the Combined Fund. |
In the Reorganization, MuniAssets will acquire substantially all of the assets and assume substantially all of the liabilities of High Income Municipal solely in return for shares of common stock of MuniAssets (MuniAssets Common Stock). High Income Municipal will distribute the MuniAssets Common Stock received in the Reorganization to its stockholders and will then liquidate and dissolve under Maryland law and terminate its registration under the Investment Company Act of 1940, as amended (the Investment Company Act). MuniAssets will continue to operate as a registered, non-diversified, closed-end investment company with the investment objective and policies described in this Joint Proxy Statement and Prospectus. |
<R>In the Reorganization, a holder of common stock of High Income Municipal (High Income Municipal Common Stock) will receive MuniAssets Common Stock (plus cash in lieu of fractional shares) with an aggregate net asset value equal to the aggregate net asset value of the shares of High Income Municipal Common Stock such stockholder held just prior to the Reorganization. All references to the High Income Municipal Common Stock will include shares of Common Stock representing Dividend Reinvestment Plan shares held in the book deposit accounts of holders of High Income Municipal Common Stock.</R> |
This Joint Proxy Statement and Prospectus serves as a prospectus of MuniAssets in connection with the issuance of MuniAssets Common Stock in the Reorganization. |
This Joint Proxy Statement and Prospectus sets forth information about MuniAssets and High Income Municipal that stockholders of the Funds should know before considering the Reorganization and should be retained for future reference. Each Fund has authorized the solicitation of proxies in connection with the Meetings solely on the basis of this Joint Proxy Statement and Prospectus and the accompanying documents. |
The address of the principal executive offices of MuniAssets and High Income Municipal is 800 Scudders Mill Road, Plainsboro, New Jersey 08536, and the telephone number is (609) 282-2800. |
MuniAssets Common Stock is listed on the New York Stock Exchange (the NYSE) under the symbol MUA and may be bought or sold at the market price on each day the NYSE is open for trading. High Income Municipal engages in a continuous offering of its Common Stock. High Income Municipal Common Stock is not listed on any exchange and no secondary market presently exists for High Income Municipal Common Stock nor is it expected that a secondary market will develop. After the Reorganization, shares of MuniAssets Common Stock will continue to be listed on the NYSE under the symbol MUA. See Additional Information. |
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Table of Contents |
INTRODUCTION |
<R>This Joint Proxy Statement and Prospectus is furnished to you in connection with the solicitation of proxies on behalf of the Board of Directors of MuniAssets and High Income Municipal for use at the Meetings to be held at the offices of Fund Asset Management, L.P. (FAM) and Merrill Lynch Investment Managers, L.P. (MLIM), respectively, 800 Scudders Mill Road, Plainsboro, New Jersey on October 24, 2001, at the time specified for each Fund in Appendix I to this Joint Proxy Statement and Prospectus. The mailing address for each Fund is P.O. Box 9011, Princeton, New Jersey 08543-9011. The approximate mailing date of this Joint Proxy Statement and Prospectus is September 13, 2001.</R> |
Any person giving a proxy may revoke it at any time prior to its exercise by executing a superseding proxy, by giving written notice of the revocation to the Secretary of MuniAssets or High Income Municipal, as applicable, at the address indicated above or by voting in person at the applicable Meeting. All properly executed proxies received prior to the Meetings will be voted at the Meetings in accordance with the instructions marked thereon or otherwise as provided therein. Unless instructions to the contrary are marked, (a) for the stockholders of both Funds, all proxies will be voted FOR Item 1 to approve the Agreement and Plan of Reorganization between MuniAssets and High Income Municipal (the Agreement and Plan); and (b) for the stockholders of MuniAssets only, all proxies submitted by MuniAssets stockholders will be voted FOR Item 2 to elect two Class I Directors of MuniAssets to serve for a term of three years. |
<R>With respect to Item 1, assuming the required quorum is present at each Meeting, approval of the Agreement and Plan will require (i) the affirmative vote of a majority of the outstanding shares of High Income Municipal entitled to vote thereon and (ii) the affirmative vote of a majority of the votes cast by the holders of MuniAssets Common Stock with respect to such item, provided that the total number of votes cast on such item represents over 50% shares entitled to vote on such item. The Reorganization will not take place if either the MuniAssets stockholders or the High Income Municipal stockholders do not approve the Agreement and Plan.</R> |
With respect to Item 2, assuming the required quorum is present at the Meeting of MuniAssets stockholders, the election of two Class I Directors of MuniAssets will require the affirmative vote of a plurality of the votes cast by MuniAssets stockholders. A plurality of the votes cast means the candidates must receive more votes than any other candidates for the same positions, but not necessarily a majority of votes cast. |
<R>The Board of Directors of each Fund has fixed the close of business on August 27, 2001 as the record date (the Record Date) for the determination of stockholders entitled to notice of, and to vote at, the Meetings, or any adjournment thereof. Stockholders on the Record Date will be entitled to one vote for each share held, with no shares having cumulative voting rights. At the Record Date, each Fund had outstanding the number of shares of Common Stock indicated in Appendix I. To the knowledge of the management of each Fund, no person owned beneficially more than 5% of the outstanding shares of capital stock of the respective Fund as of the Record Date.</R> |
The Boards of Directors of the Funds know of no business other than that discussed in Item 1 and Item 2 below that will be presented for consideration at the Meetings. If any other matter is properly presented, it is the intention of the persons named in the enclosed proxy to vote in accordance with their best judgment. |
ITEM 1. THE REORGANIZATION |
SUMMARY |
The following is a summary of certain information contained elsewhere in this Joint Proxy Statement and Prospectus and is qualified in its entirety by reference to the more complete information contained in this Joint Proxy Statement and Prospectus and in the Agreement and Plan attached hereto as Appendix II. |
The Reorganization |
At separate meetings of the Board of Directors of High Income Municipal and MuniAssets held on June 7, 2001 and July 11, 2001, respectively, each Board unanimously approved the transaction whereby (i) MuniAssets would acquire substantially all of the assets and assume substantially all of the liabilities of High Income Municipal, (ii) MuniAssets would simultaneously issue to High Income Municipal shares of MuniAssets |
Common Stock, (iii) the shares of MuniAssets Common Stock would be subsequently distributed to the holders of High Income Municipal Common Stock (plus cash in lieu of fractional shares) and (iv) High Income Municipal would be deregistered and dissolved, as described below. |
What Will Be the Results of the Reorganization |
If the Agreement and Plan is approved and the Reorganization is completed: |
| MuniAssets will acquire substantially all of the assets and assume substantially all of the liabilities of High Income Municipal; |
| Stockholders of High Income Municipal will become stockholders of MuniAssets; and |
| Stockholders of High Income Municipal Common Stock will receive full shares of MuniAssets Common Stock (plus cash in lieu of fractional shares) equal to the aggregate net asset value of the shares of High Income Municipal Common Stock currently owned by such stockholders. |
Stockholders should consult their tax advisers regarding the effect of the Reorganization in light of their individual circumstances. |
Reasons for the Reorganization |
The Boards of Directors of MuniAssets and High Income Municipal have approved the Agreement and Plan. The Boards of Directors of MuniAssets and High Income Municipal recommend that you vote to approve the Agreement and Plan. |
High Income Municipal |
<R>The Board of Directors of High Income Municipal has determined that High Income Municipal common stockholders are likely to benefit from the Reorganization and that the interests of existing stockholders will not be diluted as a result of the Reorganization. The Board of Directors believes that the Reorganization is in the best interests of High Income Municipal and its common stockholders. |
In reaching its decision, the Board of Directors considered a number of factors including the following:</R> |
| After the Reorganization, High Income Municipal common stockholders will be invested in a substantially larger non-diversified, closed-end fund with an investment objective and policies substantially similar to High Income Municipals investment objective and policies; |
| After the Reorganization, High Income Municipal common stockholders are expected to experience lower expenses per share, economies of scale and greater flexibility in portfolio management; |
| After the Reorganization, High Income Municipal common stockholders will benefit from the fact that the Combined Fund will not pay the administrative fee currently paid by High Income Municipal; |
| After the Reorganization, High Income Municipal common stockholders will no longer be subject to the expenses associated with High Income Municipals required yearly prospectus updates; |
| After the Reorganization, High Income Municipal common stockholders will no longer be subject to the expenses of conducting quarterly tender offers; |
| After the Reorganization, High Income Municipal common stockholders will no longer be subject to an early withdrawal charge (EWC) upon the sale of shares held for less than three years; and |
| <R>After the Reorganization, High Income Municipal common stockholders will be able to sell their shares on each day that the NYSE is open for trading at the market price; the market price may be lower or higher than the net asset value of the shares and transactions in shares may be subject to brokerage commissions and other charges.</R> |
MuniAssets |
<R>The Board of Directors of MuniAssets has determined that MuniAssets common stockholders are likely to benefit from the Reorganization and that the interests of existing stockholders will not be diluted as a result of the Reorganization. The Board believes that the Reorganization is in the best interest of MuniAssets and its common stockholders.</R> |
2 |
In reaching its decision the Board considered a number of factors including the following: |
| After the Reorganization, MuniAssets common stockholders will remain invested in a non-diversified, closed-end fund that has no changes to its current investment objective but has a larger asset base and is expected to have a lower expense ratio; and |
| After the Reorganization, MuniAssets common stockholders should experience economies of scale and greater flexibility in portfolio management. |
See Fee Table below and The ReorganizationPotential Benefits to Stockholders as a Result of the Reorganization. |
The Reorganization requires the approval of the stockholders of both Funds. The Reorganization will not take place if either the MuniAssets stockholders or the High Income Municipal stockholders do not approve the Agreement and Plan. If all of the requisite approvals are obtained, it is anticipated that the Reorganization will occur as soon as practicable after such approval, provided that the Funds have obtained prior to that time a favorable opinion of counsel concerning the tax consequences of the Reorganization as set forth in the Agreement and Plan. Under the Agreement and Plan, however, the Board of Directors of either Fund may cause the Reorganization to be postponed or abandoned in certain circumstances should such Board determine that it is in the best interest of the stockholders of that Fund to do so. The Agreement and Plan may be terminated, and the Reorganization abandoned, whether before or after approval by the stockholders of the Funds at any time prior to the Closing Date (as defined below), (i) by mutual consent of the Boards of Directors of the Funds, or (ii) by the Board of Directors of either Fund, if any condition to that Funds obligations has not been fulfilled or waived by such Funds Board of Directors. |
Fee Table for Common Stockholders of MuniAssets,
High Income Municipal and the Pro Forma Combined Fund as of May 31, 2001 (Unaudited) |
The following fee table below illustrates the expenses incurred by each Fund individually and the estimated pro forma expenses to be incurred by the Combined Fund after the Reorganization. Future fees and expenses may be greater or less than those indicated. |
<R> |
Actual
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Pro Forma
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MuniAssets
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High Income Municipal
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Combined Fund*
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Stockholder Transaction Expenses | ||||||
Maximum Sales Load (as a percentage of the
offering price) imposed on purchases of Common Stock |
None | (a) | None | None | (a)(b) | |
Dividend Reinvestment and Cash Purchase
Plan Fees |
None | None | None | |||
Early Withdrawal Charge
(as a percentage of original purchase price or net asset value at the time of repurchase)(c) |
None |
3.0% during the first
year, decreasing 1.0% annually thereafter to 0.0% after the third year |
None | |||
Annual Expenses (as a percentage of average
net assets attributable to Common Stock at May 31, 2001) |
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Investment Advisory Fees(d) | .55 | % | .95 | % | .55 | % |
Other Expenses | .21 | % | .66 | %(e) | .13 | % |
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Total Annual Expenses | .76 | % | 1.61 | % | .68 | % |
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* | The expenses for the Combined Fund represent the estimated annualized expenses as of May 31, 2001 assuming MuniAssets had acquired substantially all of the assets and assumed substantially all of the liabilities of High Income Municipal as of that date. |
(a) | Shares of Common Stock purchased in the secondary market may be subject to brokerage commissions or other charges. |
(b) | No sales load will be charged on the issuance of shares in the Reorganization. Shares of Common Stock are not available for purchase directly from the Combined Fund but may be purchased through a broker-dealer subject to individually negotiated commission rates. |
(c) | No Early Withdrawal Charge (EWC) will apply to shares of MuniAssets Common Stock issued to High Income Municipal in the Reorganization, nor will any EWC be due on shares of High Income Municipal Common Stock in connection with the Reorganization.</R> |
(d) | Based on average net assets of each Fund and the Combined Fund as of May 31, 2001. |
(e) | Includes the administrative fee at the rate of 0.25% of average daily net assets paid by High Income Municipal. |
3 |
Example:
Cumulative Expenses Paid on Shares of Common Stock for
the Periods Indicated:
1 Year
3 Years
5 Years
10 Years
An investor would pay the following
expenses on a $1,000 investment assuming (1) the operating expense ratio
for each Fund set forth above and (2) a 5% annual return throughout the
period:
MuniAssets
$ 8
$24
$42
$ 94
High Income Municipal*
$16
$51
$88
$191
Combined Fund**
$ 7
$22
$38
$ 85
* | Assumes that the investor is not tendering shares at the end of the period. |
** | Assumes that the Reorganization had taken place on May 31, 2001. |
The foregoing Fee Table is intended to assist investors in understanding the costs and expenses that a stockholder of each Fund will bear directly or indirectly as compared to the costs and expenses that would be borne by such investors taking into account the Reorganization. The example set forth above assumes that all dividends were reinvested and uses a 5% annual rate of return as mandated by SEC regulations and for shares of High Income Municipal Common Stock that such shares were purchased in the initial public offering of shares of High Income Municipal Common Stock. The example should not be considered a representation of past or future expenses or annual rates of return. Actual expenses or annual rates of return may be more or less than those assumed for purposes of the example. See Comparison of the Funds and The Reorganization Potential Benefits to Common Stockholders of the Funds as a Result of the Reorganization. |
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investment objectives and policies. Each Fund seeks to provide stockholders with high current income exempt from Federal income taxes. | |||||
<R>Each Fund seeks to achieve its investment objective by investing primarily in a portfolio of medium to lower grade or unrated municipal obligations, issued by or on behalf of states, territories and possessions of the United States and their political subdivisions, agencies or instrumentalities paying interest which, in the opinion of bond counsel to the issuer, is exempt from Federal income taxes (Municipal Bonds). Under normal circumstances, at least 80% of each Funds total assets will be invested in Municipal Bonds. MuniAssets and High Income Municipal each invests at least 65% and 75%, respectively, of its total assets in Municipal Bonds that are rated in any one of the medium and lower rating categories by Moodys Investors Service, Inc. (Moodys), Standard & Poors (S&P) or Fitch, Inc. (Fitch) or in unrated Municipal Bonds that the Funds investment adviser believes are of comparable quality. The average maturity of each Funds portfolio securities, and therefore each Funds portfolio as a whole, will vary based upon an assessment by the Funds investment adviser of economic and market conditions. As of May 31, 2001, the weighted average maturity of the portfolio of MuniAssets and High Income Municipal was 22.36 years and 17.71 years, respectively. See Comparison of the Funds Investment Objective and Policies in this Joint Proxy Statement and Prospectus. | |||||
Capital Stock. Each Fund has outstanding Common Stock. As of August 31, 2001, (i) the net asset value per share of MuniAssets Common Stock was $13.26 and the market price per share was $13.32; and (ii) the net asset value per share of High Income Municipal Common Stock was $9.52. See Comparison of the Funds Capital Stock in this Joint Proxy Statement and Prospectus. </R> | |||||
Liquidity. MuniAssets Common Stock trades in the secondary market on the NYSE and may be bought or sold at market price on each day the NYSE is open for trading. On any given day, the market price for MuniAssets Common Stock on the NYSE may be at a premium above or discount from the net asset value of the MuniAssets Common Stock. | |||||
High Income Municipal engages in a continuous offering of High Income Municipal Common Stock. High Income Municipal is not listed on any exchange and no secondary market presently exists for High Income Municipal Common Stock nor is it currently expected that a secondary market will develop. In order to provide liquidity for stockholders of High Income Municipal, the Fund makes tender offers on a quarterly basis to purchase its Common Stock from stockholders at net asset value per share (less any applicable EWC). If High Income |
5 |
Municipal stockholders approve the Reorganization, it is not expected that High Income Municipal will make any additional tender offers for its shares. | ||
Portfolio Management. The investment adviser for MuniAssets is FAM and the investment adviser for High Income Municipal is MLIM. FAM and MLIM are affiliates. The investment adviser for the Combined Fund will be FAM. Theodore R. Jaeckel, Jr. currently serves as the portfolio manager for each Fund and will continue to serve as the portfolio manager for the Combined Fund after the Reorganization. | ||
Advisory and Administrative Fees. FAM and MLIM are responsible for the management of the investment portfolio of MuniAssets and High Income Municipal, respectively, and for providing administrative services to each respective Fund. | ||
MuniAssets pays FAM a monthly advisory fee at the annual rate of 0.55% of MuniAssets average weekly net assets. High Income Municipal pays MLIM a monthly advisory fee at the annual rate of 0.95% of High Income Municipals average daily net assets. High Income Municipal also pays MLIM a monthly administrative fee at the annual rate of 0.25% of High Income Municipals average daily net assets. MuniAssets does not pay FAM a separate administrative fee. After the Reorganization, the Combined Fund will pay FAM a monthly advisory fee at the annual rate of 0.55% of its average weekly net assets. The Combined Fund will not pay a separate administrative fee to FAM. See Comparison of the Funds Management of the Funds. | ||
Overall Expense Ratio . The table below sets forth the total annualized operating expense ratio for MuniAssets and High Income Municipal and the Combined Fund based on their respective average net assets as of May 31, 2001. |
Average Net Assets
as of May 31, 2001 |
Total Annualized
Operating Expense Ratio |
|||||
MuniAssets | $134,643,032 | 0.76% | ||||
High Income Municipal | $130,237,579 | 1.61% | ||||
Combined Fund |
$264,880,611 | 0.68% |
After the Reorganization, on a pro forma basis, the total annualized operating expenses of the Combined Fund as a percentage of net assets is expected to be: (a) 0.93% lower than High Income Municipals total annualized operating expense ratio, and (b) 0.08% lower than MuniAssets total annualized operating expense ratio. | ||
<R> Purchases and Sales of Common Stock. Investors typically purchase and sell shares of MuniAssets Common Stock through a registered broker-dealer on each day that the NYSE is open for trading at the market price on that day, and may incur a brokerage commission set by the broker-dealer. Investors typically can purchase</R> |
6 |
shares of High Income Municipal Common Stock from FAM Distributors, Inc. (FAMD), or from other selected securities dealers or other financial intermediaries. High Income Municipal Common Stock is not listed on any exchange. No secondary market presently exists for High Income Municipal Common Stock and it is not expected that a secondary market will develop. In order to provide liquidity for stockholders of High Income Municipal, High Income Municipal makes tender offers on a quarterly basis to purchase its Common Stock from stockholders at net asset value per share (less any applicable EWC). If High Income Municipal stockholders approve the Reorganization, it is not expected that High Income Municipal will make any additional tender offers for its shares. | ||
Ratings of Municipal Bonds. MuniAssets and High Income Municipal each invests at least 65% and 75%, respectively, of its total assets in Municipal Bonds that are rated in any one of the medium and lower rating categories by Moodys, S&P or Fitch or in unrated bonds that FAM or MLIM believes are of comparable quality. MuniAssets and High Income Municipal each has the authority to invest as much as 35% and 25%, respectively, of its assets in Municipal Bonds in the higher rating categories (ratings of A or higher by Moodys, S&P or Fitch or comparable unrated securities). In addition, each Fund reserves the right to invest temporarily more than 20% of its assets in short-term municipal securities, or short-term taxable money market securities (including commercial paper, certificates of deposit and repurchase agreements) for defensive purposes when, in the opinion of FAM or MLIM, prevailing market or financial conditions warrant. | ||
Portfolio Transactions . The portfolio transactions in which the Funds may engage are substantially similar, as are the procedures for such transactions. See Comparison of the Funds Portfolio Transactions. | ||
Dividends and Distributions . The methods of dividend payment and distributions are substantially similar with respect to the Common Stock of each Fund. See Comparison of the Funds Dividends and Distributions. | ||
Net Asset Value. The net asset value per share of MuniAssets Common Stock is determined as of the close of business on the NYSE (generally, 4:00 p.m., Eastern time) on the last business day of each week. The net asset value per share of High Income Municipal Common Stock is determined as of the close of business on the NYSE on each day the NYSE is open for trading. | ||
For purposes of determining the net asset value of a share of Common Stock of each Fund, the value of the securities held by the Fund plus any cash or other assets (including interest and dividends accrued but not yet received) minus all liabilities (including accrued expenses) is divided by the total number of shares of |
7 |
Common Stock of the Fund. Expenses, including fees payable to FAM and MLIM, are accrued daily. See Comparison of the Funds Net Asset Value. | ||
Voting Rights. The corresponding voting rights of the holders of shares of each Funds Common Stock are substantially similar. See Comparison of the Funds Capital Stock. | ||
Stockholder Services. An automatic dividend reinvestment plan is available to holders of shares of the Common Stock of each Fund. The plans are different for each Fund. Under the respective plans, High Income Municipal issues new shares at net asset value. MuniAssets, however, purchases shares on the open market if its shares are trading at a discount to net asset value but issues new shares at net asset value if its shares are trading at a premium to net asset value. See Comparison of the Funds Automatic Dividend Reinvestment Plan. Other stockholder services, including the provision of annual and semi-annual reports, are the same for each Fund. |
Outstanding Securities of MuniAssets and
High Income Municipal as of May 31, 2001
|
Title of Class
|
Amount
Authorized |
Amount Held
By
Fund for Its Own Account |
Amount
Outstanding Exclusive of Amount Shown in Previous Column |
MuniAssets Common Stock | 200,000,000 | 0 | 10,454,359 |
High Income Municipal Common Stock | 200,000,000 | 0 | 13,883,973 |
|
||
Tax Considerations | <R>The consummation of the Reorganization is subject to the receipt of an opinion of counsel to the effect that, among other things, neither Fund will recognize gain or loss on the transaction and the stockholders of High Income Municipal will not recognize gain or loss on the exchange of their shares of High Income Municipal Common Stock for MuniAssets Common Stock (except to the extent that a holder of High Income Municipal Common Stock receives cash representing an interest in less than a full share of MuniAssets Common Stock in the Reorganization). The Reorganization will not affect the status of MuniAssets as a regulated investment company (RIC) under the Internal Revenue Code of 1986, as amended (the Code). See Agreement and Plan of Reorganization Tax Consequences of the Reorganization. </R> |
8 |
RISK FACTORS AND SPECIAL CONSIDERATIONS |
<R>The investment objective, policies and restrictions of MuniAssets and High Income Municipal are substantially similar. Each Fund invests primarily in long term municipal obligations, the interest on which, in the opinion of bond counsel to the issuer, is exempt from Federal income tax (Municipal Bonds). Therefore, many of the investment risks associated with an investment in MuniAssets are substantially similar to the investment risks associated with an investment in High Income Municipal. These investment risks will also apply to an investment in the Combined Fund after the Reorganization. The principal difference in risk between MuniAssets and High Income Municipal results from the fact that MuniAssets Common Stock trades at market value and shares may often trade at a discount to net asset value on the NYSE. Conversely, High Income Municipal Common Stock is not listed on any exchange and no secondary market presently exists for its common stock, nor is a secondary market currently expected to develop. Investors may, however, tender their shares to High Income Municipal for repurchase at net asset value on a quarterly basis. It is expected that the Reorganization itself will not adversely affect the rights of holders of shares of Common Stock of either Fund or create additional risks.</R> |
Except where noted, each Fund is subject to the following risks: |
Trading at a Discount |
Closed-end funds that are listed on an exchange, such as MuniAssets, are subject to the risk that the market price at which the common stock trades may be lower than the net asset value, commonly referred to as trading at a discount. Shares may also trade at a price that is higher than the Funds net asset value (a premium). |
High Income Municipal Common Stock is not listed on any exchange and no secondary market presently exists for its common stock, nor is a secondary market expected to develop. As long as there is no secondary market for High Income Municipal Common Stock, the Fund is not subject to the risk that its shares will trade at a discount to net asset value. To provide liquidity to stockholders, the Funds Board of Directors considers making tender offers once each quarter to repurchase the Funds shares at net asset value. However, shares of High Income Municipal Common Stock are less liquid than shares of funds traded on a stock exchange, and stockholders who tender shares of High Income Municipal Common Stock held for less than three years at the date of tender may pay an EWC. The Board of Directors of High Income Municipal is not obligated to authorize any tender offer, and there may be quarters in which no tender offer is made. If the Board does not authorize a tender offer, stockholders may be unable to sell their shares. Since the inception of High Income Municipal, however, the Board has authorized a tender offer each quarter. The most recent tender offer for shares of High Income Municipal Common Stock concluded on August 20, 2001. If the Reorganization is consummated, that will have been the final tender offer. Each Fund is designed primarily for long-term investors and should not be considered a vehicle for trading purposes. |
Interest Rate and Credit Risk |
Each Fund invests primarily in long term Municipal Bonds that are subject to interest rate and credit risk. Interest rate risk is the risk that prices of Municipal Bonds generally increase when interest rates decline and decrease when interest rates increase. Prices of longer-term securities generally change more in response to interest rate changes than prices of shorter-term securities. Credit risk is the risk that the issuer will be unable to pay the interest or principal when due. The degree of credit risk depends on both the financial condition of the issuer and the terms of the obligation. Because each Fund invests primarily in lower rated municipal bonds, each Fund is more subject to credit risk than a fund that invests primarily in investment grade municipal bonds. |
Non-Diversification |
Each Fund is registered as a non-diversified investment company. This means that each Fund may invest a greater percentage of its assets in the obligations of a single issuer than a diversified investment company. Since a Fund may invest a relatively high percentage of its assets in a limited number of issuers, the Fund may be more exposed to any single economic, political or regulatory occurrence than a more widely-diversified fund. Even as a non-diversified fund, each Fund must still meet the diversification requirements of applicable Federal income tax law. |
9 |
High Yield or Junk Bonds |
The Funds invest primarily in Municipal Bonds that are rated in any one of the medium and lower rating categories by S&P, Moodys or Fitch, or are considered by MLIM or FAM, as applicable, to be of comparable quality. These high yield or junk bonds entail a higher level of credit risk (loss of income and/or principal) than investments in higher rated securities. Securities rated in the lower rating categories are considered to be predominantly speculative with respect to capacity to pay interest and repay principal. Issuers of high yield securities may be highly leveraged and may not have available to them more traditional methods of financing. New issuers also may be inexperienced in managing their debt burden. The issuers ability to service its debt obligations may be adversely affected by business developments unique to the issuer, the issuers inability to meet specific projected business forecasts or the inability of the issuer to obtain additional financing. High yield securities may be unsecured and may be subordinated to other creditors of the issuer. |
Private Activity Bonds |
Each Fund may invest all or a portion of its assets in certain tax-exempt securities classified as private activity bonds. These bonds may subject certain investors in a Fund to a Federal alternative minimum tax. |
Indexed and Inverse Floating Obligations |
Each Fund may invest in municipal bonds yielding returns based on a particular index of value or interest rates. Each Fund also may invest in inverse floating obligations or residual interest bonds. These securities generally pay interest at floating interest rates that decline as short-term market rates increase and increase as short-term market rates decline. FAM and MLIM believe that investing in indexed and inverse floating obligations allows a Fund to vary the degree of investment leverage relatively efficiently under different market conditions. |
Options and Futures Transactions |
<R>Each Fund may engage in certain options and futures transactions to reduce its exposure to interest rate movements. If a Fund incorrectly forecasts market values, interest rates or other factors, that Funds performance could suffer. Each Fund also may suffer a loss if the other party to the transaction fails to meet its obligations. The Funds are not required to use hedging and each may choose not to do so. The Funds cannot guarantee that any hedging strategies that they use will work.</R> |
Antitakeover Provisions |
The Articles of Incorporation of each Fund (in each case, a Charter) and Maryland law contain certain provisions that could limit the ability of other entities or persons to acquire control of that Fund or to change the composition of its Board of Directors. Such provisions could limit the ability of stockholders to sell their shares at a premium over prevailing market prices by discouraging a third party from seeking to obtain control of a Fund. |
10 |
COMPARISON OF THE FUNDS |
Financial Highlights |
MuniAssets . The financial information in the table below has been audited in conjunction with the annual audit of the financial statements of MuniAssets by Deloitte & Touche LLP , independent auditors. The following per share data and ratios have been derived from information provided in the financial statements of MuniAssets. |
|
For the Year Ended May 31, |
For the Period
June 25, 1993 to May 31, |
|||||||||||||||
|
2001
|
2000
|
1999
|
1998
|
1997
|
1996
|
1995
|
1994
|
|||||||||
Increase (Decrease) in Net Asset Value:
|
$12.76 |
$14.46 |
$14.77 |
$14.16 |
$ 13.74 |
|
$13.73 |
|
$13.40 |
|
$14.18 | ||||||
|
|
|
|
|
|
|
|
||||||||||
Investment income net |
.83 |
.80 |
.83 |
.84 |
.84 |
.88 |
.87 |
.81 |
|||||||||
Realized and unrealized gain (loss) on
|
.19 |
(1.69 |
) |
(.32 |
) |
.62 |
.42 |
.03 |
.33 |
(.66 |
) |
||||||
|
|
|
|
|
|
|
|
||||||||||
Total from investment operations |
1.02 |
(.89 |
) |
.51 |
1.46 |
1.26 |
.91 |
1.20 |
.15 |
||||||||
|
|
|
|
|
|
|
|
||||||||||
Less dividends and distributions:
|
(.82 |
) |
(.81 |
) |
(.82 |
) |
(.85 |
) |
(.84 |
) |
(.89 |
) |
(.85 |
) |
(.74 |
) |
|
Realized gain on investments net |
|
|
|
|
|
|
|
|
|
|
|
|
|
(.15 |
) |
||
|
|
|
|
|
|
|
|
||||||||||
Total dividends and distributions |
(.82 |
) |
(.81 |
) |
(.82 |
) |
(.85 |
) |
(.84 |
) |
(.89 |
) |
(.85 |
) |
(.89 |
) |
|
|
|
|
|
|
|
|
|
||||||||||
Capital charge resulting from Issuance
|
| | | |
|
|
|
(.01 |
) |
(.02 | ) | (.04 | ) | ||||
|
|
|
|
|
|
|
|
||||||||||
Net asset value, end of period |
$12.96 |
$12.76 |
$14.46 |
$14.77 |
$14.16 |
$13.74 |
$13.73 |
$13.40 |
|||||||||
|
|
|
|
|
|
|
|
||||||||||
Market price per share, end of period |
$13.00 |
$11.1875 |
$13.00 |
$13.75 |
$12.625 |
$12.375 |
$11.875 |
|
$12.25 | ||||||||
|
|
|
|
|
|
|
|
||||||||||
Total Investment Return:*
|
8.58 |
% |
(5.45 |
%) |
3.74 |
% |
10.87 |
% |
10.11 |
% |
7.46 |
% |
9.93 |
% |
.83 |
%** |
|
|
|
|
|
|
|
|
|
||||||||||
Based on market price per share |
24.22 |
% |
(7.79 |
%) |
.19 |
% |
15.76 |
% |
9.01 |
% |
11.91 |
% |
4.00 |
% |
(12.87 |
)%** |
|
|
|
|
|
|
|
|
|
||||||||||
Ratios to Average Net Assets:
|
.76 |
% |
.74 |
% |
.72 |
% |
.75 |
% |
.76 |
% |
.55 |
% |
.50 |
% |
.20 |
% |
|
|
|
|
|
|
|
|
|
||||||||||
Expenses |
.76 |
% |
.74 |
% |
.72 |
% |
.75 |
% |
.76 |
% |
.77 |
% |
.85 |
% |
.85 |
% |
|
|
|
|
|
|
|
|
|
||||||||||
Investment income net |
6.44 |
% |
5.96 |
% |
5.66 |
% |
5.75 |
% |
6.06 |
% |
6.24 |
% |
6.54 |
% |
6.12 |
% |
|
|
|
|
|
|
|
|
|
||||||||||
Supplemental Data:
|
$135,448 |
|
$133,065 |
|
$150,883 |
|
$153,947 |
|
$147,630 | $143,195 | $143,169 | $64,154 | |||||
|
|
|
|
|
|
|
|
||||||||||
Portfolio turnover |
17.11 |
% |
32.38 |
% |
40.57 |
% |
36.39 |
% |
45.15 |
% |
42.72 |
% |
55.51 |
% |
101.59 | % | |
|
|
|
|
|
|
|
|
|
* | Total investment returns based on market value, which can be significantly greater or lesser than the net asset value, may result in substantially different returns. Total investment returns exclude the effects of sales charges. |
** | Aggregate total investment return. |
| Commencement of operations. |
| Annualized. |
11 |
<R> High Income Municipal . The financial information in the table below, except for the six-month period ended February 28, 2001, which is unaudited and has been provided by MLIM, has been audited in conjunction with the annual audit of the financial statements of High Income Municipal by Deloitte & Touche LLP , independent auditors. The following per share data and ratios have been derived from information provided in the financial statements of High Income Municipal. |
For the Six
Ended February 28, |
For the
Year Ended August 31,
|
For the Period
November 2, 1990 to August 31, |
||||||||||||||||||
2001
|
2000
|
1999
|
1998
|
1997
|
1996
|
1995
|
1994
|
1993
|
1992
|
1991
|
Increase
(Decrease) in Net Asset Value: Per Share Operating Performance: Net asset value, beginning of period |
$9.45 | $10.24 | $11.46 | $11.34 | $10.94 | $10.97 | $10.92 | $11.44 | $10.74 | $10.29 | $10.00 | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||
Investment
|
.26 | .55 | .55 | .61 | .65 | .66 | .65 | .65 | .68 | .71 | .63 | |||||||||||||||||||
Realized and
|
(.19 |
) |
(.79 |
) |
(.89 |
) |
.32 |
.44 |
(.03 |
) |
.23 |
(.45 |
) |
.75 |
.50 |
.29 |
||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||
Total from
investment operations |
.07 | (.24 | ) | (.34 | ) | .93 | 1.09 | .63 | .88 | .20 | 1.43 | 1.21 | .92 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||
Less dividends
|
(.26 |
) |
(.55 |
) |
(.55 |
) |
(.61 |
) |
(.65 |
) |
(.66 |
) |
(.65 |
) |
(.65 |
) |
(.68 |
) |
(.71 |
) |
(.63 |
) | ||||||||
Realized
|
|
|
(.18 |
) |
(.20 |
) |
(.04 |
) |
|
(.15 |
) |
(.07 |
) |
(.05 |
) |
(.05 |
) |
|
||||||||||||
In excess of
|
|
|
(.15 |
) |
|
|
|
(.03 |
) |
|
|
|
|
|||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||
Total
dividends and distributions |
(.26 | ) | (.55 | ) | (.88 | ) | (.81 | ) | (.69 | ) | (.66 | ) | (.83 | ) | (.72 | ) | (.73 | ) | (.76 | ) | (.63 | ) | ||||||||
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||
Net asset
value, end of period |
$9.26 | $9.45 | $10.24 | $11.46 | $11.34 | $10.94 | $10.97 | $10.92 | $11.44 | $10.74 | $10.29 | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||
Total Investment
Return: * Based on net asset value per share |
0.81 | %** | (2.29 | )% | (3.16 | )% | 8.43 | % | 10.20 | % | 5.81 | % | 8.68 | % | 1.75 | % | 13.83 | % | 12.29 | % | 9.43 | %** | ||||||||
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||
Ratios to Average
Net Assets: Expenses, net of reimburse- ment |
1.57 | % | 1.46 | % | 1.46 | % | 1.48 | % | 1.44 | % | 1.50 | % | 1.52 | % | 1.48 | % | 1.37 | % | 1.30 | % | .84 | % | ||||||||
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||
Expenses | 1.57 | % | 1.46 | % | 1.46 | % | 1.48 | % | 1.44 | % | 1.50 | % | 1.52 | % | 1.48 | % | 1.47 | % | 1.55 | % | 1.76 | % | ||||||||
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||
Investment
income net |
5.74 | % | 5.68 | % | 5.07 | % | 5.37 | % | 5.83 | % | 5.90 | % | 6.11 | % | 5.81 | % | 6.17 | % | 6.85 | % | 7.43 | % | ||||||||
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||
Supplemental Data:
Net assets, end of period (in thousands) |
$131,124 | $149,394 | $201,574 | $233,713 | $211,620 | $199,552 | $198,575 | $212,958 | $216,922 | $170,735 | $114,628 | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||
Portfolio
turnover |
5.10 | % | 13.42 | % | 39.53 | % | 36.45 | % | 43.07 | % | 28.54 | % | 21.28 | % | 28.51 | % | 28.74 | % | 31.74 | % | 75.92 | % | ||||||||
|
|
|
|
|
|
|
|
|
|
|
</R> |
|
* | Total investment returns exclude the effect of the early withdrawal charge, if any. High Income Municipal is a continuously offered closed-end fund, the shares of which are offered at net asset value. Therefore, no separate market exists. |
** | Aggregate total investment return. |
| Commencement of operations. |
| Annualized. |
12 |
High Income Municipal commenced operations on November
2, 1990 upon the closing of its initial public offering of shares of Common
Stock. As of August 27, 2001, High Income Municipal had 13,554,767 shares
of Common Stock outstanding. MuniAssets commenced operations on June 25,
1993 upon the closing of its initial public offering of shares of Common
Stock. As of August 27, 2001, MuniAssets had 10,461,767 shares of Common
Stock outstanding.</R>
High Income Municipal
6.51%
3.50%
6.03%
MuniAssets
8.58%
5.39%
5.67%*
MuniAssets
High Income Municipal
Average Net Assets
Total Annualized Operating
$134,643,032
0.76%
$130,237,579
1.61%
$264,880,611
0.68%
<R>
Summary.
MuniAssets
and High Income Municipal will receive an opinion of counsel with respect
to the Reorganization to the effect that, among other things, neither High
Income Municipal nor MuniAssets will recognize a gain or loss on the transaction
and High Income Municipal stockholders will not recognize gain or loss
on the transaction (except to the extent a High Income Municipal stockholder
receives cash in lieu of fractional shares).
As of May 31, 2001, each
Fund had undistributed net realized capital losses and net unrealized
capital losses. As a result of the Reorganization and subject to certain
limitations, the stockholders of each Fund may benefit from the ability
of the Combined Fund to use the net realized capital losses of the other
Fund to offset future net realized capital gains of the Combined Fund,
if any.</R>
General
. The Reorganization
has been structured with the intention that it qualify for Federal income
tax purposes as a tax-free reorganization under Section 368(a)(1)(C) of
the Code. Each Fund has elected and qualified since inception, for the
special tax treatment afforded RICs under the Code, and MuniAssets intends
to continue to so qualify after the Reorganization. The Funds have jointly
requested an opinion of counsel that for Federal income tax purposes:
(i) the exchange of substantially all of the assets by High Income Municipal
for MuniAssets Common
Stock as described above, will
constitute a reorganization within the meaning of Section 368(a)(1)(C)
of the Code, and each of MuniAssets and High Income Municipal will be
deemed a party to a reorganization within the meaning of Section
368(b) of the Code; (ii) in accordance with Section 361(a) of the Code,
no gain or loss will be recognized to High Income Municipal as a result
of the Reorganization or on the distribution of MuniAssets Common Stock
to the stockholders of High Income Municipal under Section 361(c)(1) of
the Code; (iii) under Section 1032 of the Code, no gain or loss will be
recognized to MuniAssets as a result of the Reorganization; (iv) in accordance
with Section 354(a)(1) of the Code, no gain or loss will be recognized
to the stockholders of High Income Municipal on the receipt of MuniAssets
Common Stock in exchange for their shares of Common Stock (except to the
extent that common stockholders receive cash representing an interest
in fractional shares of MuniAssets Common Stock in the Reorganization);
(v) in accordance with Section 362(b) of the Code, the tax basis of the
assets of High Income Municipal in the hands of MuniAssets will be the
same as the tax basis of such assets in the hands of High Income Municipal
immediately prior to the consummation of the Reorganization; (vi) in accordance
with Section 358 of the Code, immediately after the Reorganization, the
tax basis of the MuniAssets Common Stock received by the stockholders
of High Income Municipal in the Reorganization will be equal to the tax
basis of the Common Stock of High Income Municipal surrendered in exchange;
(vii) in accordance with Section 1223 of the Code, a stockholders
holding period for the MuniAssets Common Stock will be determined by including
the period for which such stockholder held the High Income Municipal Common
Stock exchanged therefor, provided, that such
MuniAssets
High Income
Pro Forma
Combined
<R>
By Order of the Boards of Directors,
A
LICE
A. P
ELLEGRINO
Defined Term Used
Fiscal
State of
Meeting
5/31
MD
8/31
MD
Common Stock
Board of Directors
Audit Committee
# Meetings
Annual
Per Meeting
# Meetings
Annual Fee
Per Meeting
Aggregate
4
2,000
500
4
2,000
500
40,498
5
1,900
150
4
1,900
150
29,133
$325
$325
Aggregate Compensation from
$224,500
$184,000
$184,000
$184,000
$280,233
$295,008
$264,008
$352,050
$264,008
$193,977
$373,000
$242,435
Age
High Income
MuniAssets
60
1999
1999
P.O. Box 9011, Princeton, New Jersey 08543-9011.
Chairman (Americas Region) since 2001, and Executive Vice President of
MLIM and its affiliate, FAM (which terms as used herein include their
corporate predecessors) since 1983; President, Merrill Lynch Mutual Funds
since 1999; President of FAMD since 1986 and Director thereof since 1991;
Executive Vice President and Director of Princeton Services since 1993;
President of Princeton Administrators, L.P. since 1988; Director of FDS
since 1985.
60
1997
N/A
1400 Washington Avenue, Albany, New York
12222. Professor Emeritus of Finance, School of Business, State University
of New York at Albany since 2000 and Professor thereof from 1989 to 2000;
International Consultant, Urban Institute, Washington, D.C. from 1995
to 1999.
72
N/A
1993
49
1997
N/A
Harvard Business School, Soldiers Field
Road, Boston, Massachusetts 02163. Professor, Harvard Business School
since 1989; Associate Professor, J.L. Kellogg Graduate School of Management,
Northwestern University from 1985 to 1989; Associate Professor, Graduate
School of Business Administration, The University of Michigan from 1979
to 1985; Director, UNUMProvident Corporation since 1990 and Director,
NewellRubbermaid Inc. since 1995.
70
1997
N/A
9 Hampton Harbor Road, Hampton Bays, New
York 11946. Self-employed financial consultant since 1990; President and
Chief Investment Officer of Verus Capital, Inc. from 1979 to 1990; Senior
Vice President of Arnhold and S. Bleichroeder, Inc. from 1973 to 1990;
Adjunct Professor, Columbia University Graduate School of Business from
1990 to 1991; Adjunct Professor, Wharton School, The University of Pennsylvania
from 1989 to 1990; Partner, Small Cities Cable Television from 1986 to
1997.
68
1997
N/A
127 Commonwealth Avenue, Chestnut Hill,
Massachusetts 02467. Founder and currently Director Emeritus of the Boston
University Center for the Advancement of Ethics and Character and Director
thereof from 1989 to 1999; Professor from 1982 to 1999 and currently Professor
Emeritus of Education at Boston University; formerly taught on the faculties
of The University of Chicago, Stanford University and Ohio State University.
Age
High Income
MuniAssets
70
N/A
1993
Officer Since
Age
Office
MuniAssets
High Income Municipal
60
1993
1990
1993
1993
1993
1990
1997
1995
1999
1999
1999
N/A
N/A
2001
II-17
Aaa
Bonds which are rated Aaa are judged to be of the best quality. They
carry the smallest degree of investment risk and are generally referred
to as gilt edged. Interest payments are protected by a large
or by an exceptionally stable margin and principal is secure. While the
various protective elements are likely to change, such changes can be
visualized are most unlikely to impair the fundamentally strong position
of such issues.
Aa
Bonds which are rated Aa are judged to be of high quality by all standards.
Together with the Aaa group they comprise what are generally known as
high grade bonds. They are rated lower than the best bonds because margins
of protection may not be as large as in Aaa securities or fluctuation
of protective elements may be of greater amplitude or there may be other
elements present which make the long-term risks appear somewhat larger
than in Aaa securities.
A
Bonds which are rated A possess many favorable investment attributes
and are to be considered as upper-medium-grade obligations. Factors giving
security to principal and interest are considered adequate, but elements
may be present which suggest a susceptibility to impairment some time
in the future.
Baa
Bonds which are rated Baa are considered as medium-grade obligations,
i.e.
, they are neither highly protected nor poorly secured. Interest
payments and principal security appear adequate for the present, but certain
protective elements may be lacking or may be characteristically unreliable
over any great length of time. Such bonds lack outstanding investment
characteristics and in fact have speculative characteristics as well.
Ba
Bonds which are rated Ba are judged to have speculative elements; their
future cannot be considered as well assured. Often the protection of interest
and principal payments may be very moderate and thereby not well safeguarded
during both good and bad times over the future. Uncertainty of position
characterizes bonds in this class.
B
Bonds which are rated B generally lack characteristics of a desirable
investment. Assurance of interest and principal payments or of maintenance
of other terms of the contract over any long period of time may be small.
Caa
Bonds which are rated Caa are of poor standing. Such issues may be in
default or there may be present elements of danger with respect to principal
or interest.
Ca
Bonds which are rated Ca represent obligations which are
speculative in a high degree. Such issues are often in default or have
other marked shortcomings.
C
Bonds which are rated C are the lowest rated class of
bonds and issues so rated can be regarded as having extremely poor prospects
of ever attaining any real investment standing.
Short-term
Notes:
In municipal debt issuance, there are three rating categories
for short-term obligations that are considered investment grade. These
ratings are designated as Moodys Investment Grade (MIG) and are
divided into three levels MIG 1 through MIG 3.
AAA
An obligation rated AAA has the highest rating assigned
by Standard & Poors. The obligors Capacity to meet its financial
commitment on the obligation is extremely strong.
AA
An obligation rated AA differs from the highest-rated
obligations only in small degree. The obligors capacity to meet its financial
commitment on the obligation is very strong.
A
An obligation rated A is somewhat more susceptible to
the adverse effects of changes in circumstances and economic conditions
than obligations in higher-rated categories. However, the obligors capacity
to meet its financial commitment on the obligation is still strong.
BBB
An obligation rated BBB exhibits adequate protection
parameters. However, adverse economic conditions or changing circumstances
are more likely to lead to a weakened capacity of the obligor to meet
its financial commitment on the obligation.
BB
An obligation rated BB is less vulnerable to nonpayment
than other speculative issues. However, it faces major ongoing uncertainties
or exposure to adverse business, financial, or economic conditions, which
could lead to the obligors inadequate capacity to meet its financial
commitment on the obligation.
B
An obligation rated B is more vulnerable to nonpayment
than obligations rated BB, but the obligor currently has the capacity
to meet its financial commitment on the obligation. Adverse business,
financial, or economic conditions will likely impair the obligors capacity
or willingness to meet its financial commitment on the obligation.
CCC
An obligation rated CCC is currently vulnerable
to nonpayment and is dependent upon favorable business, financial, and
economic conditions for the obligor to meet its financial commitment on
the obligation. In the event of adverse business, financial, or economic
conditions, the obligor is not likely to have the capacity to meet its
financial commitment on the obligation.
CC
An obligation rated CC is currently highly
vulnerable to nonpayment.
C
The C rating may be used to cover a situation
where a bankruptcy petition has been filed or similar action has been
taken, but payments on this obligation are being continued.
D
An obligation rated D is in payment default.
The D rating category is used when payments on an obligation
are not made on the date due even if the applicable grace period has not
expired, unless Standard & Poors believes that such payments
will be made during such grace period. The D rating also will
be used upon the filing of a bankruptcy petition or the taking of similar
action if payments on an obligation are jeopardized.
A-1
An obligor rated A-1 has STRONG capacity to
meet its financial commitments. It is rated in the highest category by
Standard & Poors. Within this category, certain obligors are
designated with a plus sign (+). This indicates that the obligors
capacity to meet its financial commitments is EXTREMELY STRONG.
A-2
An obligor rated A-2 has SATISFACTORY capacity
to meet its financial commitments. However, it is somewhat more susceptible
to the adverse effects of changes in circumstances and economic conditions
than obligors in the highest rating category.
A-3
An obligor rated A-3 has ADEQUATE capacity
to meet its financial obligations. However, adverse economic conditions
or changing circumstances are more likely to lead to a weakened capacity
of the obligor to meet its financial commitments.
B
An obligation rated B is more vulnerable to
nonpayment than obligations rated BB, but the obligor currently
has the capacity to meet its financial commitment on the obligation. Adverse
business, financial, or economic conditions will likely impair the obligors
capacity or willingness to meet its financial commitment on the obligation.
C
A subordinated debt or preferred stock obligation rated
C is CURRENTLY HIGHLY VULNERABLE to nonpayment. The C
rating may be used to cover a situation where a bankruptcy petition has
been filed or similar action taken, but payments on this obligation are
being continued. A C also will be assigned to a preferred
stock issue in arrears on dividends or sinking fund payments, but that
is currently paying.
SD
An obligor rated SD (Selective Default) or
D has failed to pay one or more of its financial obligations
(rated or unrated) when it came due. A D rating is assigned
when Standard & Poors believes that the default will be a general
default and that the obligor will fail to pay all or substantially all
of its obligations as they come due. An SD rating is assigned
when Standard & Poors believes that the obligor has selectively
defaulted on a specific issue or class of obligations but it will continue
to meet its payment obligations on other issues or classes of obligations
in a timely manner. Please see Standard & Poors issue credit
ratings for a more detailed description of the effects of a default on
specific issues or classes of obligations.
R
An obligor rated R is under regulatory supervision
owing to its financial condition. During the pendency of the regulatory
supervision the regulators may have the power to favor one class of obligations
over others or pay some obligations and not others. Please see Standard
& Poors issue credit ratings for a more detailed description
of the effects of regulatory supervision on specific issues or classes
of obligations.
N.R.
An issue designated N.R. is not rated. </R>
AAA
Highest credit quality. AAA ratings denote
the lowest expectation of credit risk. They are assigned only in case
of exceptionally strong capacity for timely payment of financial commitments.
This capacity is highly unlikely to be adversely affected by foreseeable
events.
AA
Very high credit quality. AA ratings denote
a very low expectation of credit risk. They indicate very strong capacity
for timely payment of financial commitments. This capacity is not significantly
vulnerable to foreseeable events.
A
High credit quality. A ratings denote a low
expectation of credit risk. The capacity for timely payment of financial
commitments is considered strong. This capacity may, nevertheless, be
more vulnerable to changes in circumstances or in economic conditions
than is the case for higher ratings.
BBB
Good credit quality. BBB ratings indicate
that there is currently a low expectation of credit risk. The capacity
for timely payment of financial commitments is considered adequate, but
adverse changes in circumstances and in economic conditions are more likely
to impair this capacity. This is the lowest investment-grade category.
Plus
(+)
or
Minus
(-):
Plus and minus signs are used
with a rating symbol to indicate the relative position of a credit within
the rating category. Plus and minus signs, however, are not used in the
AAA category.
BB
Speculative. BB ratings indicate that there
is a possibility of credit risk developing, particularly as the result
of adverse economic change over time; however, business or financial alternatives
may be available to allow financial commitments
to be met. Securities rated in this category are not investment grade.
B
Highly speculative. B ratings indicate that
significant credit risk is present, but a limited margin of safety remains.
Financial commitments are currently being met; however, capacity for continued
payment is contingent upon a sustained, favourable business and economic
environment.
CCC,
High default risk. Default is a real possibility. Capacity
for meeting financial commitments is solely reliant upon sustained, favourable
business or economic developments. A CC rating indicates that
default of some kind appears probable. C ratings signal imminent
default.
DDD,
Default. The ratings of obligations in this category are
based on their prospects for achieving partial or full recovery in a reorganization
or liquidation of the obligor. While expected recovery values are highly
speculative and cannot be estimated with any precision, the following
serve as general guidelines. DDD obligations have the highest
potential for recovery, around 90% - 100% of outstanding amounts and accrued
interest. DD indicates potential recoveries in the range of
50% - 90% and D the lowest recovery potential,
i.e.
,
below 50%. Entities rated in this category have defaulted on some or all
of their obligations. Entities rated DDD have the highest
prospect for resumption of performance or continued operation with or
without a formal reorganization process. Entities rated DD
and D are generally undergoing a formal reorganization or
liquidation process; those rated DD are likely to satisfy
a higher portion of their outstanding obligations, while entities rated
D have a poor prospect of repaying all obligations.
Plus
(+) or
Minus
(-): Plus and minus signs are used with a rating symbol to indicate the
relative position of a credit within the rating category. Plus and minus
signs, however, are not used in the DDD, DD, or
D categories.
F-1
Highest credit quality. Indicates the strongest capacity
for timely payment of financial commitments; may have an added "+" to
denote any exceptionally strong credit feature.
F-2
Good credit quality. A satisfactory capacity for timely
payment of financial commitments, but the margin of safety is not as great
as in the case of the higher ratings.
F-3
Fair credit quality. The capacity for timely payment of
financial commitments is adequate; however, near-term adverse changes
could result in a reduction to non-investment grade.
B
Speculative. Minimal capacity for timely payment of financial
commitments, plus vulnerability to near-term adverse changes in financial
and economic conditions.
C
High default risk. Default is a real possibility. Capacity
for meeting financial commitments is solely reliant upon a sustained,
favourable business and economic environment.
D
Default. Denotes actual or imminent payment default.
<R>
1
(a)
Articles of Incorporation of the Registrant, dated April
14, 1993.(a)
(b)
Articles of Amendment to Articles of Incorporation.(a)
2
Amended and Restated By-Laws of the Registrant.(d)
3
Not Applicable.
4
Form of Agreement and Plan of Reorganization between the
Registrant and Merrill Lynch High Income Municipal Bond Fund, Inc. (included
in Appendix II to the Joint Proxy Statement and Prospectus contained in
this Registration Statement).
5
(a)
Copies of instruments defining the rights of stockholders,
including the relevant portions of the Articles of Incorporation and the
By-Laws of the Registrant.(b)
(b)
Form of specimen certificate for the Common Stock of the
Registrant.(a)
6
Form of Investment Advisory Agreement between Registrant
and Fund Asset Management, L.P.(a)
7
(a)
Form of Purchase Agreement.(a)
(b)
Form of Merrill Lynch Standard Dealer Agreement.(a)
8
Not applicable.
9
Form of Custodian Agreement between the Fund and The Bank
of New York.(a)
10
Not applicable.
11
Opinion of Clifford Chance Rogers & Wells
LLP
,
counsel for the Registrant.
12
Opinion of Sidley Austin Brown & Wood
LLP
, relating
to certain tax matters.*
13
Form of Transfer Agency, Dividend Disbursing Agency and
Shareholder Servicing Agency Agreement between the Registrant and The
Bank of New York.(a)
14
(a)
Consent of Deloitte & Touche
LLP
,
independent auditors for the Registrant.
15
Not applicable.
16
Power of Attorney.(e)
17
Code of Ethics.(c)
Per Share Data for Common Stock* (Unaudited)
<R>
MuniAssets
(Traded on NYSE)
</R>
Quarter Ended*
Market Price**
Net Asset Value
Premium
(Discount)
to Net
Asset Value
High
Low
High
Low
High
Low
$
$
$
$
%
%
August 31, 1999
13.25
12.188
14.43
13.78
(6.57
)
(11.81
)
November 30, 1999
12.375
11.312
13.85
13.31
(9.47
)
(16.14
)
February 29, 2000
11.813
10.75
13.37
12.88
(9.27
)
(17.27
)
May 31, 2000
11.437
10.75
13.13
12.70
(11.68
)
(16.86
)
August 31, 2000
12.125
11.188
13.11
12.78
(7.30
)
(13.41
)
November 30, 2000
12.438
11.688
13.16
12.73
(4.98
)
(9.26
)
February 28, 2001
13.35
12.125
12.96
12.72
4.05
(4.98
)
May 31, 2001
13.89
12.50
12.99
12.84
2.95
(3.55
)
August 31, 2001
13.35
13.00
13.26
12.96
2.15
(0.99
)
*
Calculations are based upon shares of Common
Stock outstanding at the end of each quarter.
**
As reported in the consolidated transaction operating
system.
<R>
High Income Municipal
Quarter Ended*
Net Asset
Value
High
Low
$
$
November 30, 1999
10.24
9.88
February 29, 2000
9.90
9.57
May 31, 2000
9.61
9.27
August 31, 2000
9.46
9.31
November 30, 2000
9.46
9.22
February 28, 2001
9.29
9.21
May 31, 2001
9.35
9.26
August 31, 2001
9.53
9.34
*
Calculations are based upon shares of Common
Stock outstanding at the end of each quarter.
<R>During the last two
years, share prices for MuniAssets Common Stock have fluctuated between
a maximum premium of approximately 4.05% and a maximum discount of approximately
17.27%. Although there is no reason to believe that this pattern should
be affected by the Reorganization, it is not possible to predict whether
shares of the Combined Fund will trade at a premium or discount to net asset
value following the Reorganization, or what the magnitude of any such premium
or discount might be.</R>
Investment Objective and Policies
<R>The structure, organization
and investment policies of the Funds are substantially similar. Each Fund
is a non-diversified, closed-end management investment company registered
under the Investment Company Act.
1
The investment objectives
of the Funds are substantially similar. Each Fund seeks to provide stockholders
with high current income exempt from Federal income taxes. Each Fund seeks
to achieve its investment objective by investing primarily in a portfolio
of medium to lower grade or unrated Municipal Bonds. Under normal circumstances,
at least 80% of each Funds total assets will be invested in Municipal
Bonds. MuniAssets and High Income Municipal each invests at least 65% and
75%, respectively, of its total assets in Municipal Bonds that are rated
in any one of the medium and lower rating categories of Moodys, S&P
or Fitch, or in unrated Municipal Bonds that FAM or MLIM, as applicable,
believes are of comparable quality. These ratings are currently Baa (Moodys)
or BBB (S&P or Fitch) or lower. MuniAssets and High Income Municipal
each has the authority to invest as much as 35% and 25%, respectively, of
its assets in Municipal Bonds in the higher rating
1
13
categories of nationally recognized statistical rating organizations
(ratings of A or higher by Moodys, S&P or Fitch or comparable
unrated securities). In addition, each Fund reserves the right to temporarily
invest more than 20% of its assets in short-term municipal securities, or
short-term taxable money market securities (including commercial paper,
certificates of deposit and repurchase agreements) for defensive purposes
when, in the opinion of FAM or MLIM, prevailing market or financial conditions
warrant. Neither Fund presently contemplates that it will invest more than
25% of its total assets (taken at market value) in Municipal Bonds whose
issuers are located in the same state.
Ordinarily, neither Fund intends to realize
significant interest income that is subject to Federal income taxes. However,
each Fund may invest all or a portion of its assets in certain tax-exempt
securities classified as private activity bonds (in general,
bonds that benefit non-governmental entities) that may subject certain investors
in the Fund to a Federal alternative minimum tax.
<R>Each Fund also may
invest in securities not issued by or on behalf of a state or territory
or by an agency or instrumentality thereof, if the Fund nevertheless believes
such securities pay interest or distributions that are exempt from Federal
income taxation (Non-Municipal Tax-Exempt Securities). Non-Municipal
Tax-Exempt Securities may include securities issued by other investment
companies that invest in Municipal Bonds, to the extent such investments
are permitted by the Investment Company Act. Other Non-Municipal Tax-Exempt
Securities could include trust certificates or other instruments evidencing
interest in one or more long-term Municipal Bonds. Certain Non-Municipal
Tax-Exempt Securities may be characterized as derivative instruments. Non-Municipal
Tax-Exempt Securities that pay interest exempt from Federal income taxes
will be considered Municipal Bonds for purposes of the Funds
investment objective and policies.</R>
Investments in lower rated
Municipal Bonds generally provide a higher yield and are less affected by
interest rate fluctuations than higher rated tax-exempt securities of similar
maturity but are subject to greater overall market risk and are also subject
to a greater degree of risk with respect to the ability of the issuer to
meet its principal and interest obligations. See Appendix III - Ratings
of Municipal Bonds and Commercial Paper.
Each Fund seeks to reduce risk
through investing in multiple issuers, credit analysis and monitoring of
current developments regarding the obligor and trends in both the economy
and financial markets. FAM and MLIM each will use various means to research
the stability and/or potential for improvement of various municipal issuers
in connection with the proposed purchase of their securities by the Funds.
Evaluation of each Municipal Bond may include the analysis of financial
performance, debt structure, economic factors and the administrative structure
of the issuer. Additionally, the priority of liens and the overall structure
of the particular issue may be factors that will determine suitability for
purchase. Further investigation may be performed and may include, among
other things, discussions with project management, corporate officers and
industry experts as well as site inspections, area analysis, and project
and financial projection analysis. All purchases and sales also may be subject
to the review of market data, economic projections and the performance of
the financial markets. Certain economic indicators also may be monitored.
Additionally, FAM and MLIM each will vary the average maturity of the applicable
Funds portfolio securities based upon their assessment of economic
and market conditions.
<R>Each Fund is classified
as non-diversified within the meaning of the Investment Company Act, which
means that it is not limited by such Act in the proportion of its assets
that it may invest in securities of a single issuer. However, each Funds
investments will be limited so as to qualify the Fund as a regulated
investment company for purposes of Federal tax laws. See Taxes.
Requirements for qualification include limiting its investments so that,
at the close of each quarter of the taxable year, (i) not more than 25%
of the market value of the Funds total assets will be invested in
the securities (other than U.S. Government securities) of a single issuer
and (ii) with respect to 50% of the market value of its total assets, not
more than 5% of the market value of its total assets will be invested in
the securities (other than U.S. Government securities) of a single issuer
and the Fund will not own more than 10% of the outstanding voting securities
of a single issuer. A fund that elects to be classified as diversified
under the Investment Company Act must satisfy the foregoing 5% and 10% requirements
with respect to 75% of its total assets. To the extent that a Fund assumes
large positions in the securities of a small number of issuers, the Funds
net asset value may fluctuate to a greater extent than that of a diversified
company as a result of changes in the financial condition or in the markets
assessment of the issuers.</R>
14
Description of Municipal Bonds
<R>Municipal Bonds include
debt obligations issued to obtain funds for various public purposes, including
construction and equipping of a wide range of public facilities, refunding
of outstanding obligations and obtaining funds for general operating expenses
and loans to other public or private institutions for the construction of
facilities. In addition, certain types of private activity bonds (PABs)
are issued by or on behalf of public authorities to finance various privately-operated
facilities, including airports, public parks, mass commuting facilities
and multifamily housing projects, as well as facilities for water supply,
gas, electricity, sewage or solid waste disposal and pollution control facilities.
For purposes of this Proxy Statement and Prospectus, such obligations are
Municipal Bonds if the interest paid thereon is exempt from Federal income
tax, even though such bonds may be industrial development bonds or PABs
as discussed below. </R>
The two principal classifications
of Municipal Bonds are general obligation bonds and revenue
or special obligation bonds, which latter category includes
PABs and, for bonds issued on or before August 15, 1986, industrial development
bonds or IDBs. General obligation bonds are typically secured
by the issuers pledge of faith, credit, and taxing power for the repayment
of principal and the payment of interest. The taxing power of any governmental
entity may be limited, however, by provisions of state constitutions or
laws, and an entitys credit will depend on many factors, including
potential erosion of the tax base due to population declines, natural disasters,
declines in the states industrial base or inability to attract new
industries, economic limits on the ability to tax without eroding the tax
base, state legislative proposals or voter initiatives to limit ad valorem
real property taxes, and the extent to which the entity relies on Federal
or state aid, access to capital markets or other factors beyond the states
or entitys control. Revenue or special obligation bonds are payable
only from the revenues derived from a particular facility or class of facilities
or, in some cases, from the proceeds of a special excise tax or other specific
revenue source such as from the user of the facility being financed. PABs
are in most cases revenue bonds and generally are not secured by a pledge
of the credit or taxing power of the issuer of such bonds. The repayment
of the principal and the payment of interest on such bonds depend solely
on the ability of the user of the facility financed by the bonds to meet
its financial obligations, and the pledge, if any, of real and personal
property so financed as security for such payment. Municipal Bonds also
may include moral obligation bonds, which normally are issued
by special purpose public authorities. If an issuer of moral obligation
bonds is unable to meet its obligations, the repayment of such bonds becomes
a moral commitment but not a legal obligation of the state or municipality
in question.
Each Fund may purchase Municipal
Bonds classified as PABs. Interest received on certain PABs is treated as
an item of tax preference for purposes of the Federal alternative
minimum tax and may impact the overall tax liability of investors in the
Fund. There is no limitation on the percentage of the Funds assets
that may be invested in Municipal Bonds the interest on which is treated
as an item of tax preference for purposes of the Federal alternative
minimum tax. See Tax Rules Applicable to the Funds and their Stockholders.
<R>Also included within
the general category of Municipal Bonds are certificates of participation
(COPs) executed and delivered for the benefit of government
authorities or entities to finance the acquisition or construction of equipment,
land and/or facilities. The COPs represent participations in a lease, an
installment purchase contract or a conditional sales contract (hereinafter
collectively called lease obligations) relating to such equipment,
land or facilities. Although lease obligations do not constitute general
obligations of the issuer for which the issuers unlimited taxing power
is pledged, a lease obligation is frequently backed by the issuers
covenant to budget for, appropriate and make the payments due under the
lease obligation. However, certain lease obligations contain non-appropriation
clauses which provide that the issuer has no obligation to make lease or
installment purchase payments in future years unless money is appropriated
for such purpose on a yearly basis. Although non-appropriation
lease obligations are secured by the leased property, disposition of the
property in the event of foreclosure might prove difficult.</R>
Federal tax legislation has
limited the types and volume of bonds qualifying for the Federal income
tax exemption of interest. As a result, this legislation and legislation
that may be enacted in the future may affect the availability of Municipal
Bonds for investment by the Funds.
Other Investment Policies
Each Fund has adopted certain
other policies as set forth below:
Taxable Commercial Paper.
Taxable
commercial paper must be rated A-1+ through A-3 by S&P, Prime-1 through
Prime-3 by Moodys, F-1+ through F-3 by Fitch or have credit characteristics
equivalent to such ratings
15
in the opinion of FAM and MLIM. The short-term tax-exempt
obligations also will be in the highest rating categories as determined
either by Moodys (currently, MIG-1 through MIG-3 for notes and Prime-1
through Prime-3 for commercial paper), S&P (currently, SP-1+ through
SP-2 for notes and A-1+ through A-3 for commercial paper), or Fitch (currently,
F-1 and F-2 for notes and F-1 for commercial paper), except that MuniAssets
may invest in lower rated or unrated short-term tax exempt obligations to
the extent that such investments do not exceed 20% of its assets. Certificates
of deposit must be issued by depository institutions with total assets of
at least $1 billion, except that the Funds may invest in certificates of
deposit of smaller institutions if such certificates of deposit are Federally
insured. See Appendix III Ratings of Municipal Bonds and Commercial
Paper.
When-Issued Securities and Delayed Delivery
Transactions
. Each Fund may purchase or sell Municipal Bonds on a delayed
delivery basis or when-issued basis at fixed purchase or sale terms. These
transactions arise when securities are purchased or sold by a Fund with
payment and delivery taking place in the future. The purchase will be recorded
on the date the Fund enters into the commitment and the value of the obligation
will thereafter be reflected in the calculation of the Funds net asset
value. The value of the obligation on the delivery date may be more or less
than its purchase price. A separate account of a Fund will be established
with its custodian consisting of cash, cash equivalents or liquid securities
having a market value at all times at least equal to the amount of the commitment.
Call Rights
. Each
Fund may purchase a Municipal Bond issuers right to call all or a
portion of such Municipal Bond for mandatory tender for purchase (a Call
Right). A holder of a Call Right may exercise such right to require
a mandatory tender for the purchase of related Municipal Bonds, subject
to certain conditions. A Call Right that is not exercised prior to the maturity
of the related Municipal Bond will expire without value. The economic effect
of holding both the Call Right and the related Municipal Bond is identical
to holding a Municipal Bond as a non-callable security.
<R>
Indexed and Inverse
Floating Obligations
. Each Fund may invest in Municipal Bonds (and Non-Municipal
Tax-Exempt Securities) yielding a return based on a particular index of
value or interest rates. For example, the Funds may invest in Municipal
Bonds that pay interest based on an index of Municipal Bond interest rates.
The principal amount payable upon maturity of certain Municipal Bonds also
may be based on the value of an index. The Funds return on these types
of Municipal Bonds (and Non-Municipal Tax-Exempt Securities) will be subject
to risk with respect to the value of the particular index, including reduced
or eliminated interest payments and losses of invested principal. The Funds
also may invest in so-called inverse floating obligations or
residual interest bonds on which the interest rates typically
vary inversely with a short-term floating rate (which may be reset periodically
by a dutch auction, a remarketing agent, or by reference to a short-term
tax-exempt interest rate index). Each Fund may purchase synthetically created
inverse floating rate bonds evidenced by custodial or trust receipts. Generally,
interest rates on inverse floating rate bonds will decrease when short-term
interest rates increase, and will increase when short-term interest rates
decrease. Such securities have the effect of providing a degree of investment
leverage, since they may increase or decrease in value in response to changes
in market interest rates at a rate that is a multiple (typically two) of
the rate at which fixed-rate, long-term tax-exempt securities increase or
decrease in response to such changes. As a result, the market values of
such securities will generally be more volatile than the market values of
fixed-rate tax-exempt securities. To seek to limit the volatility of these
securities, each Fund may purchase inverse floating obligations that have
shorter term maturities or that contain limitations on the extent to which
the interest rate may vary. FAM and MLIM believe that indexed and inverse
floating obligations represent a flexible portfolio management instrument
for the Funds that allows FAM and MLIM to vary the degree of investment
leverage relatively efficiently under different market conditions.
Repurchase Agreements
.
Each Fund may invest in securities pursuant to repurchase agreements. Repurchase
agreements may be entered into only with a member bank of the Federal Reserve
System or a primary dealer in U.S. Government securities or an affiliate
thereof. Under a repurchase agreement, the seller agrees, upon entering
into the contract, to repurchase the security at a mutually agreed upon
time and price, thereby determining the yield during the term of the agreement.
This results in a fixed rate of return insulated from market fluctuations
during such period. Each Fund may not invest in repurchase agreements maturing
in more than seven days if such investments, together with all other illiquid
investments, would exceed 15% of the Funds net assets. In the event
of default by the seller under a repurchase agreement, the Fund may suffer
time delays and incur costs or possible losses in connection with the disposal
of the underlying securities. In general, for Federal income tax purposes,
repurchase agreements are treated as collateralized loans secured by the
securities sold. Therefore, amounts earned under such agreements
will not be considered tax-exempt interest.</R>
16
MuniAssets and High Income
Municipal have different policies relating to borrowings. Under MuniAssets
borrowing policy, which will apply to the Combined Fund, MuniAssets may
not borrow money in amounts in excess of 5% of its total assets taken at
market value. High Income Municipals policy relating to borrowing
is set forth below.
Borrowings
. High Income
Municipal is authorized to borrow money in amounts of up to 33
1
/3
%
of the value of its total assets at the time of such borrowings to finance
the purchase of its own shares pursuant to tender offers, if any, or for
temporary, extraordinary or emergency purposes. Borrowings by the Fund (commonly
known as leveraging) create an opportunity for greater total
return since the Fund will not be required to sell portfolio securities
to purchase tendered shares but, at the same time, increase exposure to
capital risk. In addition, borrowed funds are subject to interest costs
that may offset or exceed the return earned on the borrowed funds.
Information Regarding Options and Futures
Transactions
Each Fund may hedge all or
a portion of its portfolio investments against fluctuations in interest
rates through the use of options and certain financial futures contracts
and options thereon. While each Funds use of hedging strategies is
intended to reduce the volatility of the net asset value of Fund shares,
the net asset value of Fund shares will fluctuate. There can be no assurance
that a Funds hedging transactions will be effective. Furthermore,
the Funds engage in hedging activities from time to time and may not necessarily
be engaging in hedging activities when movements in interest rates occur.
The Funds have no obligation to enter into hedging transactions and each
may choose not to do so.
Gains from transactions in
options and futures contracts distributed to stockholders are taxable as
ordinary income or, in certain circumstances, as long-term capital gains
to stockholders. See Taxes Tax Treatment of Options and Futures
Transactions.
The following is a description
of the options and futures transactions in which the Funds may engage, limitations
on the use of such transactions and risks associated therewith. The investment
policies with respect to the hedging transactions of each Fund are not fundamental
policies and may be modified by that Funds Board of Directors without
the approval of the Funds stockholders.
Writing Covered Call Options
.
Each Fund may write (
i.e.
, sell) covered call options with respect to Municipal
Bonds it owns, thereby giving the holder of the option the right to buy
the underlying security covered by the option from the Fund at the stated
exercise price until the option expires. Each Fund only writes covered options,
which means that so long as the Fund is obligated as the writer of a call
option, it will own the underlying securities subject to the option. Neither
Fund may write covered call options on underlying securities in an amount
exceeding 15% of the market value of its total assets.
Each Fund receives a premium
from writing a call option that increases the Funds return on the
underlying security in the event the option expires unexercised or is closed
out at a profit. By writing a call, a Fund limits its opportunity to profit
from an increase in the market value of the underlying security above the
exercise price of the option for as long as the Funds obligation as
a writer continues. Covered call options serve as a partial hedge against
a decline in the price of the underlying security. Each Fund may engage
in closing transactions in order to terminate outstanding options that it
has written.
Purchase of Options
.
Each Fund may purchase put options in connection with its hedging activities.
By buying a put a Fund has a right to sell the underlying security at the
exercise price, thus limiting the Funds risk of loss through a decline
in the market value of the security until the put expires. The amount of
any appreciation in the value of the underlying security will be partially
offset by the amount of the premium paid for the put option and any related
transaction costs. Prior to its expiration, a put option may be sold in
a closing sale transaction; profit or loss from the sale will depend on
whether the amount received is more or less than the premium paid for the
put option plus the related transaction costs. A closing sale transaction
cancels out a Funds position as the purchaser of an option by means
of an offsetting sale of an identical option prior to the expiration of
the option it has purchased. In certain circumstances, a Fund may purchase
call options on securities held in its portfolio on which it has written
call options or on securities that it intends to purchase. Neither Fund
will purchase options on securities if, as a result of such purchase, the
aggregate cost of all outstanding options on securities held by that Fund
would exceed 5% of the market value of the Funds total assets.
Financial Futures Contracts and Options
.
Each Fund may purchase and sell certain financial futures contracts and
options thereon solely for the purpose of hedging its investments in Municipal
Bonds against
17
declines in value and to hedge against increases in the
cost of securities it intends to purchase. A financial futures contract
obligates the seller of a contract to deliver and the purchaser of a contract
to take delivery of the type of financial instrument covered by the contract,
or in the case of index-based futures contracts to make and accept a cash
settlement, at a specific future time for a specified price. A sale of financial
futures contracts may provide a hedge against a decline in the value of
portfolio securities because such depreciation may be offset, in whole or
in part, by an increase in the value of the position in the financial futures
contracts. A purchase of financial futures contracts may provide a hedge
against an increase in the cost of securities intended to be purchased,
because such appreciation may be offset, in whole or in part, by an increase
in the value of the position in the futures contracts.
<R>The purchase or sale
of a futures contract differs from the purchase or sale of a security in
that no price or premium is paid or received. Instead, an amount of cash
or U.S. Treasury bills equal to approximately 5% of the contract amount
must be deposited with the broker. This amount is known as initial margin.
Subsequent payments to and from the broker, called variation margin, are
made on a daily basis as the price of the futures contract fluctuates making
the long and short positions in the futures contract more or less valuable.
The Funds may purchase and
sell financial futures contracts based on The Bond Buyer Municipal Bond
Index, a price-weighted measure of the market value of 40 large recently
issued tax-exempt bonds, and purchase and sell put and call options on such
futures contracts for the purpose of hedging Municipal Bonds that the Funds
hold or anticipate purchasing against adverse changes in interest rates.
Each Fund also may purchase and sell financial futures contracts on U.S.
Government securities and purchase and sell put and call options on such
futures contracts for such hedging purposes. With respect to U.S. Government
securities, currently there are financial futures contracts based on long-term
U.S. Treasury bonds, Treasury notes, GNMA Certificates and three-month U.S.
Treasury bills.</R>
Subject to policies adopted
by its Directors, each Fund also may engage in transactions in other financial
futures contracts transactions and options thereon, such as financial futures
contracts or options on other municipal bond indices that may become available
if FAM or MLIM, as the case may be, and the Directors of the Fund should
determine that there is normally a sufficient correlation between the prices
of such futures contracts and the Municipal Bonds in which the Funds invest
to make such hedging appropriate.
Over-the-Counter Options
.
Each Fund may engage in options and futures transactions on exchanges and
in the over-the-counter markets. In general, exchange-traded contracts are
third-party contracts (
i.e
., performance of the parties obligations
is guaranteed by an exchange or clearing corporation) with standardized
strike prices and expiration dates. Over-the-counter options (OTC
options) transactions are two-party contracts with price and terms
negotiated by the buyer and seller. See Restrictions on OTC Options
below for information as to restrictions on the use of OTC options.
Restrictions on OTC Options
.
Each Fund will engage in OTC options only with member banks of the Federal
Reserve System and primary dealers in U.S. Government securities or with affiliates
of such banks or dealers that have capital of at least $50 million or whose
obligations are guaranteed by an entity having capital of at least $50 million.
OTC options and assets used to cover OTC options written by a Fund may be
considered to be illiquid. The illiquidity of such options or assets may
prevent a successful sale of such options or assets, result in a delay of
sale, or reduce the amount of proceeds that might otherwise be realized.
<R>Risk Factors
in Options and Futures Transactions
. Utilization of futures transactions
involves the risk of imperfect correlation in movements in the price of
futures contracts and movements in the price of the security that is the
subject of the hedge. If the price of the futures contract moves more or
less than the price of the security that is the subject of the hedge, a
Fund will experience a gain or loss that will not be completely offset by
movements in the price of such security. There is a risk of imperfect correlation
where the securities underlying futures contracts have different maturities,
ratings, geographic compositions or other characteristics than the security
being hedged. In addition, the correlation may be affected by additions
to or deletions from the index that serves as a basis for a financial futures
contract. Finally, in the case of futures contracts on U.S. Government securities
and options on such futures contracts, the anticipated correlation of price
movements between the U.S. Government securities underlying the futures
or options and Municipal Bonds may be adversely affected by economic, political,
legislative or other developments which have a disparate impact on the respective
markets for such securities.</R>
Under regulations of the Commodity Futures
Trading Commission (the CFTC), the futures trading activities
described herein will not result in a Fund being deemed a commodity
pool, as defined under such regulations, provided that each Fund adheres
to certain restrictions. In particular, each Fund may purchase and
18
sell futures contracts and options thereon (i) for bona fide
hedging purposes, without regard to the percentage of the Funds assets
committed to margin and option premiums and (ii) for non-hedging purposes
if, immediately thereafter, the sum of the amount of initial margin deposits
on the Funds existing futures position and premiums paid for outstanding
options would exceed 5% of the market value of the liquidation value of
the Funds portfolio, after taking into account unrealized profits
and unrealized losses on any such transactions. Margin deposits may consist
of cash or securities acceptable to the broker and the relevant contract
market.
When a Fund purchases a futures
contract, or writes a put option or purchases a call option thereon, it
will maintain an amount of cash, cash equivalents (
e.g
., commercial
paper and daily tender adjustable notes) or short-term high-grade fixed-income
securities in a segregated account with the Funds custodian, so that
the amount so segregated plus the amount of initial and variation margin
held in the account of its broker equals the market value of the futures
contract, thereby ensuring that the use of such futures contract is unleveraged.
Although certain risks are
involved in options and futures transactions, FAM and MLIM believe that,
because the Funds will engage in options and futures transactions only for
hedging purposes, the options and futures portfolio strategies of the Funds
do not subject the Funds to certain risks frequently associated with speculation
in options and futures transactions.
The volume of trading in the
exchange markets with respect to Municipal Bond options may be limited,
and it is impossible to predict the amount of trading interest that may
exist in such options. In addition, there can be no assurance that viable
exchange markets will continue.
Each Fund intends to enter
into options and futures transactions, on an exchange or in the over-the-counter
market, only if there appears to be a liquid secondary market for such options
or futures or, in the case of OTC options, FAM and MLIM believe the Funds
can receive on each business day at least two independent bids or offers.
There can be no assurance, however, that a liquid secondary market will
exist at any specific time. Thus, it may not be possible to close an options
or futures transaction. The inability to close options and futures positions
also could have an adverse impact on a Funds ability to effectively
hedge its portfolio. There is also the risk of loss by a Fund of margin
deposits or collateral in the event of bankruptcy of a broker with whom
a Fund has an open position in an options or futures contract.
The liquidity of a secondary
market in a futures contract may be adversely affected by daily price
fluctuation limits established by commodity exchanges which limit
the amount of fluctuation in a futures contract price during a single trading
day. Once the daily limit has been reached in the contract, no trades may
be entered into at a price beyond the limit, thus preventing the liquidation
of open futures positions. Prices have in the past moved beyond the daily
limit on a number of consecutive trading days.
If it is not possible to close
a financial futures position entered into by a Fund, that Fund would continue
to be required to make daily cash payments of variation margin in the event
of adverse price movements. In such a situation, if a Fund has insufficient
cash, it may have to sell portfolio securities to meet daily variation margin
requirements at a time when it may be disadvantageous to do so.
The successful use of these
transactions also depends on the ability of FAM and MLIM to forecast correctly
the direction and extent of interest rate movements within a given time
frame. To the extent these rates remain stable during the period in which
a futures contract is held by a Fund or move in a direction opposite to
that anticipated, that Fund may realize a loss on the hedging transaction
that is not fully or partially offset by an increase in the value of portfolio
securities. As a result, a Funds total return for such period may
be less than if it had not engaged in the hedging transaction. Furthermore,
a Fund only engages in hedging transactions from time to time and may not
necessarily be engaging in hedging transactions when movements in interest
rates occur.
Investment Restrictions
The Funds investment
restrictions differ in some respects, as discussed below. The fundamental
investment restrictions of each Fund may not be changed without the approval
of the holders of a majority of the outstanding shares of Common Stock of
that Fund. (For this purpose and under the Investment Company Act, majority
means the lesser of (i) 67% of the shares represented at a meeting at which
more than 50% of the outstanding shares are represented or (ii) more than
50% of the outstanding shares.) The following investment restrictions of
MuniAssets will apply to the Combined Fund. Under its fundamental investment
restrictions, MuniAssets may not:
1)
Make investments for the purpose of exercising
control or management.
2)
Purchase securities of other investment companies,
except in connection with a merger, consolidation, acquisition or reorganization,
or by purchase in the open market of securities of closed-end investment
19
companies and only if immediately thereafter not
more than 10% of the Funds total assets would be invested in such
securities.
3)
Purchase or sell real estate, real estate limited
partnerships, commodities or commodity contracts; provided that the Fund
may invest in securities secured by real estate or interests therein or
issued by companies that invest in real estate or interests therein and
the Fund may purchase and sell financial futures contracts and options thereon.
4)
Issue senior securities or borrow amounts in excess
of 5% of its total assets taken at market value.
5)
Underwrite securities of other issuers except insofar
as the Fund may be deemed an underwriter under the Securities Act of 1933
in selling portfolio securities.
6)
Make loans to other persons, except that the Fund
may purchase Municipal Bonds and other debt securities and enter into repurchase
agreements in accordance with its investment objective, policies and limitations.
7)
Invest more than 25% of its total assets (taken
at market value at the time of each investment) in securities of issuers
in a single industry. (For purposes of this restriction, states, municipalities
and their political subdivisions are not considered to be part of any industry.)
For purposes of restriction
(7), the exception for states, municipalities and their political subdivisions
applies only to tax-exempt securities issued by such entities.
Additional investment restrictions
adopted by MuniAssets, which may be changed by its Board of Directors without
stockholder approval, provide that MuniAssets may not:
1)
Invest more than 25% of its total assets (taken
at market value at the time of each investment) in the Municipal Bonds of
any one state.
2)
Mortgage, pledge, hypothecate or in any manner
transfer, as security for indebtedness, any securities owned or held by
the Fund except as may be necessary in connection with borrowings mentioned
in (4) above or except as may be necessary in connection with transactions
in financial futures contracts and options thereon.
3)
Purchase any securities on margin, except that
the Fund may obtain such short-term credit as may be necessary for the clearance
of purchases and sales of portfolio securities (the deposit or payment by
the Fund of initial or variation margin in connection with financial futures
contracts and options thereon is not considered the purchase of a security
on margin).
4)
<R>Make short sales of securities or maintain
a short position or invest in put, call, straddle or spread options except
that the Fund may write, purchase and sell options and futures on municipal
bonds, U.S. Government obligations and related indices or otherwise in connection
with bona fide hedging activities and may purchase and sell call rights
to require a mandatory tender for the purchase of related municipal bonds.</R>
If a percentage restriction
on the investment or use of assets set forth above is adhered to at the
time a transaction is effected, later changes in percentages resulting from
changing values will not be considered a violation.
High Income Municipals
fundamental investment restrictions are substantially the same as MuniAssets
fundamental investment restrictions (1) through (7) above. However, High
Income Municipal has two other fundamental investment restrictions, which
are substantially similar to MuniAssets additional non-fundamental investment restrictions (3) and
(4) above.
FAM, MLIM and Merrill Lynch,
Pierce, Fenner & Smith Incorporated (Merrill Lynch) are
owned and controlled by Merrill Lynch & Co., Inc. (ML & Co.).
Because of the affiliation of Merrill Lynch with FAM and MLIM, the Funds
are prohibited from engaging in certain transactions involving Merrill Lynch
except pursuant to an exemptive order or otherwise in compliance with the
provisions of the Investment Company Act and the rules and regulations thereunder.
Included among such restricted transactions will be purchases from or sales
to Merrill Lynch of securities in transactions in which it acts as principal.
An exemptive order has been obtained which permits the Funds to effect principal
transactions with Merrill Lynch in high quality, short-term, tax-exempt
securities subject to conditions set forth in such order. See Portfolio
Transactions.
20
Portfolio Composition
<R>There are differences
in concentration among the types of securities held in the portfolio of
each Fund. For MuniAssets, as of July 31, 2001, approximately 88.6%, 10.4%,
0.3% and 0.7% of its portfolio was invested in revenue bonds, general obligation
bonds, common stock and cash equivalents, respectively; for High Income
Municipal, approximately 89.4%, 9.8%, 0.5% and 0.3% of its portfolio was
invested in revenue bonds, general obligation bonds, common stock, and cash
equivalents, respectively.
Although the investment portfolios
of the Funds must satisfy the same standards with respect to credit quality,
the actual securities owned by each Fund are different. As a result there
are certain differences in the composition of the two investment portfolios.
The tables below set forth the percentages as of July 31, 2001 of the municipal
bonds held by each Fund.</R>
MuniAssets
<R>As of July 31, 2001,
approximately 97% and 3% of the market value of MuniAssets portfolio
was invested in long-term Municipal Bonds and short-term Municipal Bonds,
respectively. The following table sets forth certain information with respect
to the composition of MuniAssets long-term municipal obligation investment
portfolio as of July 31, 2001.
S&P
Moodys
Number of Issues
Value (in
thousands)
Percent
BBB
Baa
13
$ 23,964
18.1%
BB
Ba
15
$ 25,148
19.0%
B
B
3
$ 4,423
3.3%
NR
NR
44
$ 78,849
59.6%
Total:
75
$132,384
100.0%</R>
*
Ratings: Using the higher of S&Ps or
Moodys rating on the Funds Municipal Bonds S&Ps rating
categories may be modified further by a plus (+) or minus (-) in AA, A and
BBB ratings. Moodys rating categories may be modified further by a
1, 2 or 3 in Aa, A and Baa ratings. See Appendix III Ratings
of Municipal Bonds and Commercial Paper.
High Income Municipal
<R>As of July 31, 2001,
approximately 98% and 2% of the market value of High Income Municipals
portfolio was invested in long-term Municipal Bonds and short-term Municipal
Bonds, respectively. The following table sets forth certain information
with respect to the composition of High Income Municipals long-term
municipal obligation investment portfolio as of July 31, 2001.
S&P
Moodys
Number of Issues
Value (in
thousands)
Percent
AAA
Aaa
4
$ 8,178
6.3%
A
A
2
$ 3,729
2.9%
BBB
Baa
6
$ 17,811
13.8%
BB
Ba
14
$ 14,879
11.5%
B
B
6
$ 17,364
13.5%
NR
NR
37
$ 66,997
52.0%
Total:
69
$128,958
100.0%</R>
*
Ratings: Using the higher of S&Ps or
Moodys rating on High Income Municipals Municipal Bonds. S&Ps
rating categories may be modified further by a plus (+) or minus (-) in
AA, A and BBB ratings. Moodys rating categories may be modified further
by a 1, 2 or 3 in AA, A and Baa ratings. See Appendix III Ratings
of Municipal Bonds and Commercial Paper.
Performance
<R>
The
table below sets forth for each Fund the yield and tax equivalent yield
for the 31 days ended May 31, 2001 and the average annual total return for
the one, five and ten years ended May 31, 2001.
Average
Annual Total Return
Yield 31 days
ended May 31, 2001
Tax equivalent
yield 31 days
ended May 31, 2001
One Year ended
May 31, 2001
Five Years ended
May 31, 2001
Since Inception/
Ten Years
ended
May 31, 2001
6.42%
8.10%
6.62%
9.32%
Assumes a 27.5% federal income tax
rate.
*
Since inception on June 25, 1993.</R>
21
Portfolio Transactions
The procedures for engaging
in portfolio transactions are the same for each Fund. Subject to policies
established by the Board of Directors of each Fund, FAM or MLIM is primarily
responsible for the execution of the applicable Funds portfolio transactions.
In executing such transactions, FAM and MLIM seek to obtain the best results
for the applicable Fund, taking into account such factors as price (including
the applicable brokerage commission or dealer spread), size of order, difficulty
of execution and operational facilities of the firm involved and the firms
risk in positioning a block of securities. While FAM and MLIM generally
seek reasonably competitive commission rates, the Funds do not necessarily
pay the lowest commission or spread available.
Neither Fund has any obligation
to deal with any broker or dealer in the execution of transactions in portfolio
securities. Subject to obtaining the best price and execution, securities
firms that provide supplemental investment research to FAM and MLIM, including
Merrill Lynch, may receive orders for transactions by a Fund. Information
so received will be in addition to, and not in lieu of, the services required
to be performed by FAM and MLIM under their respective investment advisory
agreements with the Funds, and the expenses of FAM and MLIM will not necessarily
be reduced as a result of the receipt of such supplemental information.
Each Fund invests
in securities that are primarily traded in the over-the-counter markets,
and each Fund normally deals directly with the dealers who make markets
in the securities involved, except in those circumstances where better prices
and execution are available elsewhere. Under the Investment Company Act,
except as permitted by exemptive order, persons affiliated with a Fund are
prohibited from dealing with the Fund as principals in the purchase and
sale of securities. Since transactions in the over-the-counter markets usually
involve transactions with dealers acting as principals for their own account,
the Funds do not deal with affiliated persons, including Merrill Lynch and
its affiliates, in connection with such transactions, except that, pursuant
to an exemptive order obtained by FAM and MLIM, a Fund may engage in principal
transactions with Merrill Lynch in high quality, short-term, tax-exempt
securities. An affiliated person of a Fund may serve as its broker in over-the-counter
transactions conducted on an agency basis.
Each Fund also may purchase
tax-exempt debt instruments in individually negotiated transactions with
the issuers of such securities. Because an active trading market may not
exist for such securities, the prices that a Fund may pay for these securities
or receive on their resale may be lower than that for similar securities
with a more liquid market.
The Board of Directors of each
Fund has considered the possibility of recapturing for the benefit of the
Funds brokerage commissions, dealer spreads and other expenses of possible
portfolio transactions, such as underwriting commissions, by conducting
portfolio transactions through affiliated entities, including Merrill Lynch.
For example, brokerage commissions received by Merrill Lynch could be offset
against the investment advisory fees paid by each Fund to FAM or MLIM. After
considering all factors deemed relevant, the Directors of each Fund made
a determination not to seek such recapture. The Directors will reconsider
this matter from time to time.
Portfolio Turnover
Generally, neither Fund purchases
securities for short-term trading profits. However, either Fund may dispose
of securities without regard to the time that they have been held when such
action, for defensive or other reasons, appears advisable to FAM or MLIM.
The portfolio turnover rate is calculated by dividing the lesser of purchases
or sales of portfolio securities for the particular fiscal year by the monthly
average of the value of the portfolio securities owned by a Fund during
the particular fiscal year. For purposes of determining this rate, all securities
whose maturities at the time of acquisition are one year or less are excluded.
A high portfolio turnover rate results in greater transaction costs, which
are borne directly by a Fund, and also has certain tax consequences for
stockholders. The portfolio turnover rate for each Fund for the periods
indicated is set forth below:
Year Ended
May 31, 2000
Year Ended
May 31, 2001
32.38%
17.11%
Year Ended
August 31, 2000
Six Months
Ended February 28, 2001
13.42%
5.10%
22
Net Asset Value
The net asset value per share
of MuniAssets Common Stock is determined as of the close of business on
the NYSE on the last business day of each week. The net asset value per
share of High Income Municipal Common Stock is determined as of the close
of business on the NYSE once daily on each day the NYSE is open for trading.
The NYSE generally closes at 4:00 p.m. Eastern time. For purposes of determining
the net asset value of a share of Common Stock of each Fund, the value of
the securities held by each Fund plus any cash or other assets (including
interest and dividends accrued but not yet received) minus all liabilities
(including accrued expenses) is divided by the total number of shares of
Common Stock outstanding at such time. Expenses, including fees payable
to FAM and MLIM, are accrued daily.
The Municipal Bonds in which
each Fund invests are traded primarily in the over-the-counter markets.
In determining net asset value, each Fund uses the valuations of portfolio
securities furnished by a pricing service approved by its Board of Directors.
The pricing service typically values portfolio securities at the bid price
or the yield equivalent when quotations are readily available. Municipal
Bonds for which quotations are not readily available are valued at fair
market value on a consistent basis as determined by the pricing service
using a matrix system to determine valuations. The procedures of the pricing
service and its valuations are reviewed by the officers of each Fund under
the general supervision of the Board of Directors of that Fund. The Board
of Directors of each Fund has determined in good faith that the use of a
pricing service is a fair method of determining the valuation of portfolio
securities. Positions in futures contracts are valued at closing prices
for such contracts established by the exchange on which they are traded,
or if market quotations are not readily available, are valued at fair value
on a consistent basis using methods determined in good faith by the Board
of Directors of each Fund.
MuniAssets determines and makes
available for publication weekly the net asset value of its Common Stock.
Currently, the net asset values of shares of publicly traded closed-end
investment companies investing in debt securities are published in
Barrons
,
the Monday edition of
The Wall Street Journal
, and the Monday and
Saturday editions of
The New York Times
. The net asset value of High
Income Municipal may be obtained by calling the Funds transfer agent
at 1-800-637-3863.
Capital Stock
<R>Each Fund has outstanding
Common Stock. The Common Stock of MuniAssets is traded on the NYSE. The
shares of MuniAssets Common Stock commenced trading on the NYSE on July
20, 1993. As of August 31, 2001, the net asset value per share of MuniAssets
Common Stock was $13.26 and the market price per share was $13.32. High
Income Municipal engages in a continuous offering of High Income Municipal
Common Stock. High Income Municipal Common Stock is not listed on any exchange.
No secondary market presently exists for High Income Municipal Common Stock
and a secondary market is not expected to develop. As of May 31, 2001, the
net asset value per share of High Income Municipal Common Stock was $9.52.</R>
Each Fund is authorized to
issue 200,000,000 shares of capital stock, all of which initially were classified
as Common Stock. The Board of Directors of each Fund is authorized to classify
or reclassify any unissued shares of capital stock by setting or changing
the preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications, or terms or conditions of redemption.
Holders of each Funds
Common Stock are entitled to share equally in dividends declared by the
Funds Board of Directors payable to holders of the Common Stock and
in the net assets of the Fund available for distribution to holders of the
Common Stock. Holders of a Funds Common Stock do not have preemptive
or conversion rights and shares of a Funds Common Stock are not redeemable.
The outstanding shares of Common Stock of each Fund are fully paid and nonassessable.
Certain Provisions of the Charters
Each Funds Charter includes
provisions that could have the effect of limiting the ability of other entities
or persons to acquire control of a Fund or to change the composition of
its Board of Directors and in the case of MuniAssets, could have the effect
of depriving stockholders of an opportunity to sell their shares at a premium
over prevailing market prices by discouraging a third party from seeking
to obtain control of the Fund. With respect to High Income Municipal, a
director may be removed from office with cause by action taken by the
23
holders of at least 75% of the shares of capital stock
entitled to be voted on the matter. With respect to MuniAssets, a director
may be removed from office with or without cause by vote of the holders
of 66% of the votes entitled to be voted on the matter.
In addition, the Charters of MuniAssets and High
Income Municipal require the favorable vote of the holders of at least 66
2
/3
%
and 75%, respectively, of all of the Funds shares of capital stock,
then entitled to be voted on the matter, to approve, adopt or authorize
the following:
a merger or consolidation or statutory share exchange
of the Fund with any other corporation or entity,
a sale of all or substantially all of the Funds
assets (other than in the regular course of the Funds investment activities),
or
a liquidation or dissolution of the Fund,
unless such action has been approved, adopted or authorized
by the affirmative vote of at least two-thirds of the total number of Directors
fixed in accordance with the by-laws, in which case the affirmative vote
of a majority of all of the votes entitled to be cast by stockholders of
such Fund is required.
In addition, conversion of
MuniAssets to an open-end investment company would require an amendment
to MuniAssets Charter. The amendment would have to be declared advisable
by the Board of Directors prior to its submission to stockholders. Such
an amendment would require the affirmative vote of the holders of at least
66
2
/3
% of MuniAssets outstanding
shares of capital stock entitled to be voted on the matter (or a majority
of such shares if the amendment was previously approved, adopted or authorized
by the affirmative vote of at least two-thirds of the total number of Directors
fixed in accordance with the by-laws). Such a vote also would satisfy a
separate requirement in the Investment Company Act that the change be approved
by the stockholders. Stockholders of an open-end investment company may
require the company to redeem their shares of common stock at any time (except
in certain circumstances as authorized by or under the Investment Company
Act) at their net asset value, less such redemption charge, if any, as might
be in effect at the time of a redemption. All redemptions will be made in
cash. If MuniAssets is converted to an open-end investment company, it could
be required to liquidate portfolio securities to meet requests for redemptions,
and the MuniAssets Common Stock would no longer be listed on a stock exchange.
Conversion to an open-end investment company would require changes in certain
of the Funds investment policies and restrictions, such as those relating
to the purchase of illiquid securities.
The Board of Directors of each
Fund has determined that the voting requirements described above, which
are greater than the minimum requirements under the Investment Company Act or, in certain circumstances, Maryland law, are in the best interests of stockholders generally. Reference
should be made to the Charter of each Fund on file with the SEC for the
full text of these provisions.
Management of the Funds
<R>
Directors and
Officers
. The Board of Directors of MuniAssets currently consists of
six persons, five of whom are not interested persons, as defined
in the Investment Company Act, of MuniAssets. The Board of Directors of
High Income Municipal currently consists of eight persons, seven of whom
are not interested persons, as defined in the Investment Company
Act, of High Income Municipal. Terry K. Glenn serves as President and a
Director of each Fund. The Directors of each Fund are responsible for the
overall supervision of the operations of the Fund and perform the various
duties imposed on the directors of investment companies by the Investment
Company Act and under applicable Maryland law. The Funds have the same slate
of officers with a few exceptions. For further information regarding the
Directors and officers of each Fund, see Appendix I Information
Pertaining to Each Fund.</R>
Theodore R. Jaeckel, Jr. serves
as the portfolio manager of each Fund and will continue to serve as the
portfolio manager of the Combined Fund after the Reorganization. The portfolio
manager is primarily responsible for the management of the applicable Funds
portfolio.
Advisory and Administrative Arrangements
.
FAM and MLIM, both of which are owned and controlled by ML & Co., serve
as the investment adviser for MuniAssets and High Income Municipal, respectively,
pursuant to separate investment advisory agreements that, except for (i)
termination dates, (ii) advisory fee rates and (iii) the fact that the investment
advisory agreement for MuniAssets contains certain provisions relating to
FAMs providing administrative services to MuniAssets, are substantially
similar. See Administrative Services and
24
<R>Fees below. FAM and MLIM provide the respective
Fund with the same investment advisory and management services. FAM, MLIM,
and their affiliates act as investment advisers to more than 100 registered
investment companies and offer services to individuals and institutional
accounts. As of July 2001, FAM and MLIM had a total of approximately $535
billion in investment company and other portfolio assets under management
(approximately $24.6 billion of which were invested in municipal securities).
This amount includes assets managed for certain affiliates of FAM and MLIM.
FAM and MLIM were organized as investment advisers in 1977 and 1976, respectively,
and each offers investment advisory services to more than 50 registered
investment companies. The principal business address of both FAM and MLIM
is 800 Scudders Mill Road, Plainsboro, New Jersey 08536.</R>
Each Funds investment
advisory agreement with FAM or MLIM (each, an Investment Advisory
Agreement), as applicable, provides that, subject to the supervision
of the Board of Directors of the Fund, FAM or MLIM is responsible for the
actual management of the relevant Funds portfolio. The responsibility
for making decisions to buy, sell or hold a particular security for a Fund
rests with FAM or MLIM, as applicable, subject to review by the Board of
Directors of that Fund.
For the services provided by
FAM under MuniAssets Investment Advisory Agreement, MuniAssets pays
a monthly fee at an annual rate of 0.55% of its average weekly net assets
(i.e., the average weekly value of the total assets of the Fund, minus the
sum of accrued liabilities of the Fund). For purposes of this calculation,
average weekly net assets are determined at the end of each month on the
basis of the average net assets of the Fund for each week during the month.
The assets for each weekly period are determined by averaging the net assets
at the last business day of a week with the net assets at the last business
day of the prior week. For the services provided by MLIM under High Income
Municipals Investment Advisory Agreement, High Income Municipal pays
a monthly fee at an annual rate of 0.95% of average daily net assets (
i.e
.,
the average daily value of the total assets of the Fund, minus the sum of
accrued liabilities of the Fund). For purposes of this calculation, average
daily net assets are determined at the end of each month on the basis of
the average net assets of the Fund for each day during the month. After
the Reorganization, the investment adviser for the Combined Fund will be
FAM, and the Combined Fund will pay FAM a monthly fee at the annual rate
of 0.55% of its average weekly net assets as described above.
<R>For the fiscal years
ended May 31, 1999, 2000 and 2001, the fees paid by MuniAssets to FAM pursuant
to the Investment Advisory Agreement were $839,645, $770,217, and $740,906,
respectively (such fees based on average weekly net assets of approximately
$152.7 million, $140.0 million and $134.6 million, respectively). For the
fiscal years ended August 31, 1998, 1999 and 2000 and the six month period
ended February 28, 2001, the fees paid by High Income Municipal to MLIM
pursuant to the Investment Advisory Agreement were $2,144,677, $2,138,848,
$1,661,213 and $669,103, respectively (such fees based on average daily
net assets of approximately $226.4 million, $225.1 million, $174.9 million
and $142.0 million, respectively).</R>
Administrative Services
and Fees
. Under the terms of the administration agreement between High
Income Municipal and MLIM (the Administration Agreement), MLIM
also performs or arranges for the performance of the administrative services
(
i.e
., services other than investment advice and related portfolio activities)
necessary for the operation of High Income Municipal, including administering
shareholder accounts and handling shareholder relations. Pursuant to the
MuniAssets Investment Advisory Agreement, FAM provides similar services
for MuniAssets.
Under the Administration Agreement,
High Income Municipal pays MLIM a monthly fee at an annual rate of 0.25%
of the Funds average daily net assets determined in the same manner
as the fee payable by High Income Municipal under the Investment Advisory
Agreement. MuniAssets does not pay a separate administrative fee to FAM.
FAM provides administrative services to MuniAssets under the MuniAssets
Investment Advisory Agreement. After the Reorganization, the Combined Fund
also will not pay a separate administrative fee to FAM.
<R> For the fiscal years
ended August 31, 1998, 1999 and 2000 and the six month period ended February
28, 2001, the fees paid by High Income Municipal to MLIM pursuant to the
Administration Agreement were $564,389, $562,855, $437,161 and $176,080,
respectively (such fees based on average daily net assets of approximately
$226.4 million, $225.1 million, $174.9 million and $142.0 million,
respectively).</R>
Payment of Fund Expenses
. Each Funds
Investment Advisory Agreement obligates FAM or MLIM, as applicable, to provide
investment advisory services and, in the case of MuniAssets, administrative
services to the Fund. Under each Funds Investment Advisory Agreement,
FAM or MLIM, as applicable, pays all compensation of and furnishes office
space for officers and employees of the Fund connected with investment and
economic
25
research, trading and investment management, as well as
the compensation of all Directors of the Fund who are affiliated persons
of FAM, MLIM or any of their affiliates.
Each Fund pays all other expenses
incurred in the operation of the Fund, including, among other things, expenses
for legal and auditing services, taxes, costs of printing proxies, listing
fees, if any, stock certificates and stockholder reports, charges of the
custodian and the transfer agent, dividend disbursing agent and registrar,
SEC fees, fees and expenses of unaffiliated Directors, accounting and pricing
costs, insurance, interest, brokerage costs, litigation and other extraordinary
or non-recurring expenses, mailing and other expenses properly payable by
the Fund.
<R>
Accounting Services
Provider
. Each Fund has entered into an agreement with State Street
Bank and Trust Company (State Street), effective January 1,
2001, pursuant to which State Street provides certain accounting services
to each Fund. Each Fund pays a fee for these services. For the period January
1, 2001 to May 31, 2001 and for the period January 1, 2001 to February 28,
2001, MuniAssets and High Income Municipal paid State Street $21,907 and
$8,909, respectively, under this agreement. Prior to January 1, 2001, FAM
or MLIM, as applicable, provided accounting services to each Fund at its
cost and each Fund reimbursed FAM or MLIM, as applicable, for these services.
FAM or MLIM, as applicable, continues to provide certain accounting services
to each Fund. MuniAssets and High Income Municipal reimburse FAM or MLIM,
as applicable, for such services. For the fiscal years ended May 31, 1999, 2000 and 2001,
MuniAssets reimbursed FAM an aggregate of $54,814, $40, 954 and $31,455, respectively, for the above-described
accounting services. For the fiscal years ended August 31, 1998, 1999 and 2000 and the six months ended February 28, 2001, High Income
Municipal reimbursed MLIM an aggregate of $60,910, $74,013, $34,636 and $22,050, respectively, for the above-described
accounting services.</R>
Duration and Termination
of Investment Advisory and Administration Agreements
. Unless earlier
terminated as described below, the Investment Advisory Agreement between
each Fund and FAM or MLIM, as applicable, will continue from year to year
if approved annually (a) by the Board of Directors of a Fund or by a majority
of the outstanding shares of a Funds Common Stock, voting together
as a single class, and (b) by a majority of the Directors of a Fund who
are not parties to such contract or interested persons, as defined
in the Investment Company Act, of any such party. The contract is not assignable
and it may be terminated without penalty on 60 days written notice
at the option of either party thereto or by the vote of the stockholders
of the Fund.
High Income Municipals
Administration Agreement will continue in effect until terminated. The agreement
is not assignable and may be terminated without penalty on 60 days
written notice at the option of either party thereto.
Securities held by a Fund may
also be held by, or be appropriate investments for, other funds or investment
advisory clients for which FAM, MLIM or their affiliates act as an adviser.
Because of different objectives or other factors, a particular security
may be bought for an advisory client when other clients are selling the
same security. If purchases or sales of securities by FAM or MLIM for a
Fund or other funds for which it acts as investment adviser or for advisory
clients arise for consideration at or about the same time, transactions
in such securities will be made, insofar as feasible, for the respective
funds and clients in a manner deemed equitable to all. Transactions effected
by FAM, MLIM (or their affiliates) on behalf of more than one of its clients
during the same period may increase the demand for securities being purchased
or the supply of securities being sold, causing an adverse effect on price.
Code of Ethics
<R>The Board of Directors
of each Fund has approved a Code of Ethics under Rule 17j-l of the Investment
Company Act that covers each Fund, FAM, MLIM and FAMD. The Code of Ethics
establishes procedures for personal investing and restricts certain transactions.
Employees subject to the Code of Ethics may invest in securities for their
personal investment accounts, including securities that may be purchased
or held by the Fund.</R>
Voting Rights
Voting rights are identical
for the holders of shares of each Funds Common Stock. Holders of each
Funds Common Stock are entitled to one vote for each share held. The
shares of each Funds Common Stock do not have cumulative voting rights,
which means that the holders of more than 50% of the shares of a Funds
Common Stock voting for the election of Directors can elect all of the Directors
standing for election by such holders, and, in such event, the holders of
the remaining shares of a Funds Common Stock will not be able to elect
any of such Directors.
26
Stockholder Inquiries
Stockholder inquiries with
respect to either Fund may be addressed to such Fund by telephone at (609)
282-2800 or at the address set forth on the cover page of this Joint Proxy
Statement and Prospectus.
Dividends and Distributions
<R>The Funds current
policies with respect to dividends and distributions relating to shares
of their Common Stock are identical. Each Fund intends to distribute all
or a portion of its net investment income monthly to holders of a Funds
Common Stock. A Fund may at times pay out less than the entire amount of
net investment income earned in any particular period and may at times pay
out such accumulated undistributed income in addition to net investment
income earned in other periods in order to permit it to maintain a more
stable level of dividends to holders of Common Stock. As a result, the dividend
paid by a Fund to holders of its Common Stock for any particular period
may be more or less than the amount of net investment income earned by that
Fund during such period. For Federal tax purposes, a Fund is required to
distribute substantially all of its net investment income for each year.
All net realized capital gains, if any, are distributed pro rata at least
annually to holders of shares of a Funds Common Stock. See Comparison
of the Funds Tax Rules Applicable to the Funds and Their Stockholders.</R>
Dividends paid by each Fund,
to the extent paid from tax-exempt income earned on Municipal Bonds, are
exempt from Federal income tax, subject to the possible application of a
Federal alternative minimum tax. However, each Fund is required to allocate
net capital gains and other income subject to regular Federal income tax,
if any, proportionately between shares of its Common Stock and any other
classes of stock outstanding in accordance with the current position of
the IRS described herein. See Tax Rules Applicable to the Funds and
Their Stockholders below.
For information concerning
the manner in which dividends and distributions to holders of each Funds
Common Stock may be reinvested automatically in shares of a Funds
Common Stock, see Automatic Dividend Reinvestment Plan below.
Dividends and distributions will be subject to the tax treatment discussed
below, whether they are reinvested in shares of a Fund or received in cash.
Automatic Dividend Reinvestment Plan
<R>Pursuant to each Funds
Automatic Dividend Reinvestment Plan (each, a Plan), unless
a holder of a Funds common stock is ineligible or elects otherwise,
all dividends and distributions are automatically reinvested by either The
Bank of New York (BONY), as agent for MuniAssets stockholders
in administering the Plan, or Financial Data Services, Inc. (FDS),
as agent for stockholders of High Income Municipal in administering the
Plan (each, a Plan Agent), in additional shares of the applicable
Funds Common Stock. Certain provisions of each Plan are different
because only MuniAssets shares are exchange-listed while High Income
Municipal shares are continuously offered by High Income Municipal. After
the Reorganization, the Combined Fund will use the MuniAssets Plan and BONY
will be the Plan Agent. Stockholders whose shares are held in the name of
a broker or nominee should contact such broker or nominee to confirm that
they are eligible to participate in a Funds dividend reinvestment
plan. Holders of a Funds Common Stock who are ineligible or elect
not to participate in a Plan receive all distributions in cash paid by check
mailed directly to the stockholder of record (or, if the shares are held
in street or other nominee name, then to such nominee) by BONY or FDS, as
applicable, as dividend paying agent. Such stockholders may elect not to
participate in a Plan and to receive all distributions of dividends and
capital gains in cash by sending written instructions to BONY or by sending
written instructions to FDS or calling FDS at (1-800-MER-FUND), as applicable,
as dividend paying agent, at the addresses set forth below. Participation
in each Plan is completely voluntary and may be terminated or resumed at
any time without penalty by written notice if received by the applicable
Plan Agent not less than ten days prior to any dividend record date; otherwise,
such termination or resumption will be effective with respect to any subsequently
declared dividend or capital gains distribution.</R>
The applicable Plan Agent maintains
all stockholders accounts in a Plan and furnishes written confirmation
of all transactions in the account, including information needed by stockholders
for tax records. Shares in the account of each Plan participant are held
by the applicable Plan Agent in non-certificated form in the name of the
participant, and each stockholders proxy includes those shares purchased
or received pursuant to a Plan. The applicable Plan Agent will forward all
proxy solicitation materials to participants and vote proxies for shares
held pursuant to a Plan in accordance with the instructions of the participants.
27
In the case of stockholders
such as banks, brokers or nominees that hold shares for others who are the
beneficial owners, the applicable Plan Agent will administer a Plan on the
basis of the number of shares certified from time to time by the record
stockholders as representing the total amount registered in the record stockholders
name and held for the account of beneficial owners who are to participate
in that Plan.
The automatic reinvestment
of dividends and distributions does not relieve participants of any Federal,
state or local income tax that may be payable (or required to be withheld)
on such dividends. See Comparison of the Funds Tax Rules Applicable
to the Funds and Their Stockholders.
There are no brokerage charges
with respect to shares issued directly by either Fund as a result of dividends
or capital gains distributions payable either in shares or in cash. However,
each participant in the MuniAssets Plan pays a pro rata share of brokerage
commissions incurred with respect to any open-market purchases by the Plan
Agent in connection with the reinvestment of dividends.
Each Fund reserves the right
to amend or terminate its Plan. There is no direct service charge to participants
in a Plan; however, each Fund reserves the right to amend its Plan to include
a service charge payable by the participants.
MuniAssets
Under the MuniAssets Plan,
whenever the Fund declares an ordinary income dividend or a capital gain
dividend (collectively referred to as dividends) payable either
in shares or in cash, non-participants in the Plan receive cash, and participants
in the Plan receive the equivalent in shares of the Funds Common Stock.
The shares are acquired by the Plan Agent for the participants account,
depending upon the circumstances described below, either (i) through receipt
of additional unissued but authorized shares of the Funds Common Stock
from the Fund (newly issued shares) or (ii) by purchase of outstanding
shares of the Funds Common Stock on the open market (open-market
purchases), on the NYSE, or elsewhere. If on the payment date for
the dividend, the net asset value per share of the Funds Common Stock
is equal to or less than the market price per share of the Funds Common
Stock plus estimated brokerage commissions (such condition being referred
to herein as market premium), the Plan Agent invests the dividend
amount in newly issued shares on behalf of the participant. The number of
newly issued shares of the Funds Common Stock to be credited to the
participants account is determined by dividing the dollar amount of
the dividend by the net asset value per share on the date the shares are
issued, provided that the maximum discount from the then-current market
price per share on the date of issuance may not exceed 5%. If on the dividend
payment date, the net asset value per share is greater than the market value
(such condition being referred to herein as market discount),
the Plan Agent invests the dividend amount in shares acquired on behalf
of the participant in open-market purchases.
In the event of a market discount
on the dividend payment date, the MuniAssets Plan Agent has until the last
business day before the next date on which the shares trade on an ex-dividend
basis or in no event more than 30 days after the dividend payment date (the
last purchase date) to invest the dividend amount in shares
acquired in open-market purchases. MuniAssets intends to pay monthly income
dividends. Therefore, the period during which open-market purchases can
be made exists only from the payment date on the dividend through the date
before the next ex-dividend date, which typically is approximately
ten days. If, before the Plan Agent has completed its open-market purchases,
the market price of a share of MuniAssets Common Stock exceeds the net asset
value per share, the average per share purchase price paid by the Plan Agent
may exceed the net asset value of the Funds shares, resulting in the
acquisition of fewer shares than if the dividend had been paid in newly
issued shares on the dividend payment date. Because of the foregoing difficulty
with respect to open-market purchases, the Plan provides that if the Plan
Agent is unable to invest the full dividend amount in open-market purchases
during the purchase period or if the market discount shifts to a market
premium during the purchase period, the Plan Agent ceases making open-market
purchases and invests the uninvested portion of the dividend amount in newly
issued shares at the close of business on the last purchase date.
Stockholders participating in the MuniAssets
Plan may receive benefits not available to stockholders not participating
in that Plan. If the market price (plus commissions) of the Funds
shares of Common Stock is higher than the net asset value of such shares,
participants in the Plan receive shares of the Funds Common Stock
at less than they otherwise could purchase them and have shares with a cash
value greater than the value of any cash distribution they would have received
on their shares. If the market price plus commissions is lower than the
net asset value of such shares, participants receive distributions of shares
with a net asset value greater than the value of any cash distribution they
would have received on their shares. However, there may be insufficient
shares
28
available in the market to make distributions of shares at
prices below the net asset value. Also, since the Fund normally does not
redeem its shares, the price on resale may be more or less than the net
asset value. See Comparison of the Funds Tax Rules Applicable
to the Funds and Their Stockholders for a discussion of the tax consequences
of each Plan.
High Income Municipal
<R>Under the High Income
Municipal Plan, High Income Municipal always issues newly issued shares
at net asset value. No early withdrawal charge is imposed upon redemption
of shares issued as a result of the automatic reinvestment of dividends
or capital gains distributions. After the Reorganization, High Income Municipal
common stockholders will own shares of MuniAssets and such shares will not
be subject to the EWC currently applicable to High Income Municipal Common
Stock.
After the Reorganization, a
holder of shares of High Income Municipal who has elected to receive dividends
in cash will continue to receive dividends in cash; all other holders will
have their dividends automatically reinvested in shares of the Combined
Fund. However, if a stockholder owns shares in both Funds, after the Reorganization,
the stockholders election with respect to the dividends of MuniAssets
will control unless the stockholder specifically elects a different option
at that time. Prior to the Reorganization, High Income Municipal stockholders
should direct all correspondence to the Plan Agent for High Income Municipal
as follows: Financial Data Services, Inc., 4800 Deer Lake Drive East, Jacksonville,
Florida 32246-6484. Following the Reorganization, all correspondence should
be directed to the Plan Agent for MuniAssets, The Bank of New York, 101
Barclay Street, New York, New York 10286.</R>
Mutual Fund Investment Option
<R>A holder of MuniAssets
Common Stock who purchased his or her shares through Merrill Lynch in the
Funds initial public offering has the right to reinvest the net proceeds
from a sale of such shares in Class A shares of certain Merrill Lynch-sponsored
open-end funds without the imposition of an initial sales charge, if certain
conditions are satisfied. A holder of High Income Municipal Common Stock
has an investment option consisting of the right to reinvest the net proceeds
from a sale of shares of High Income Municipal Common Stock in a tender
offer by High Income Municipal in Class D shares of certain Merrill Lynch-sponsored
open-end funds at their net asset value, without imposition of a sales charge,
if the High Income Municipal Common Stock was held for three years at the
date of tender. If the Reorganization is consummated, a holder of High Income
Municipal Common Stock will have the same mutual fund investment option
as a holder of MuniAssets Common Stock who purchased his or her shares through
Merrill Lynch in the initial public offering of MuniAssets Common Stock
as described above.</R>
Tax Rules Applicable to the Funds and
Their Stockholders
The tax consequences of investing
in shares of Common Stock of each Fund are substantially similar. The Funds
have elected and qualified since inception for the special tax treatment
afforded RICs under the Code. As a result, in any taxable year in which
they distribute an amount equal to at least 90% of taxable net income and
90% of tax-exempt net income (see below), the Funds (but not their stockholders)
are not subject to Federal income tax to the extent that they distribute
their net investment income and net realized capital gains. In all taxable
years through the taxable year of the Reorganization, each Fund has distributed
substantially all of its income. MuniAssets intends to continue to distribute
substantially all of its income following the Reorganization.
Each Fund is qualified to pay exempt-interest
dividends as defined in Section 852(b)(5) of the Code. Under such
section, if, at the close of each quarter of its taxable year, at least
50% of the value of a Funds total assets consists of obligations exempt
from Federal income tax (tax-exempt obligations) under Section
103(a) of the Code (relating generally to obligations of a state or local
governmental unit), that Fund is qualified to pay exempt-interest dividends
to its stockholders. Exempt-interest dividends are dividends or any part
thereof paid by a Fund which are attributable to interest on tax-exempt
obligations and designated by a Fund as exempt-interest dividends in a written
notice mailed to stockholders within 60 days after the close of its taxable
year. To the extent that the dividends distributed to a Funds stockholders
are derived from interest income exempt from Federal income tax under Code
Section 103(a) and are properly designated as exempt-interest dividends,
they are excludable from a stockholders gross income for Federal income
tax purposes. Exempt-interest dividends are included, however, in determining
the portion, if any, of a persons social security benefits and railroad
retirement benefits subject to Federal income taxes. A tax adviser should
be consulted with respect to whether exempt-interest dividends retain the
exclusion under Code Section 103(a) if a stockholder would be treated as
a
29
substantial user or related person
under Code Section 147(a) with respect to property financed with the proceeds
from an issue of IDBs or PABs, if any, held by a Fund.
To the extent that a Funds
distributions are derived from interest on its taxable investments or from
an excess of net short-term capital gains over net long-term capital losses
(ordinary income dividends), such distributions are considered
taxable ordinary income for Federal income tax purposes. Distributions,
if any, from an excess of net long-term capital gains over net short-term
capital losses derived from the sale of securities or from certain transactions
in futures or options (capital gain dividends) are taxable as
long-term capital gains for Federal income tax purposes, regardless of the
length of time the stockholder has owned Fund shares. Certain categories
of capital gains are taxable at different rates for Federal income tax purposes.
Generally not later than 60 days after the close of its taxable year, a
Fund provides its stockholders with a written notice designating the amounts
of any exempt-interest dividends and capital gain dividends, as well as
any amount of capital gain dividends in the different categories of capital
gain referred to above. Distributions by a Fund, whether from exempt-interest
income, ordinary income or capital gains, are not eligible for the dividends
received deduction for corporations under the Code.
A loss realized on a sale or
exchange of shares of a Fund is disallowed if other Fund shares are acquired
(whether under the Automatic Dividend Reinvestment Plan or otherwise) within
a 61-day period beginning 30 days before and ending 30 days after the date
that the shares are disposed of. In such a case, the basis of the shares
acquired will be adjusted to reflect the disallowed loss.
All or a portion of a Funds
gain from the sale or redemption of tax-exempt obligations purchased at
a market discount will be treated as ordinary income rather than capital
gain. This rule may increase the amount of ordinary income dividends received
by stockholders. Any loss upon the sale or exchange of Fund shares held
for six months or less is treated as long-term capital loss to the extent
of exempt-interest dividends received by the stockholder. In addition, such
loss is disallowed to the extent of any capital gain dividends received
by the stockholder. Distributions in excess of a Funds earnings and
profits first will reduce the adjusted tax basis of a holders shares
and, after such adjusted tax basis is reduced to zero, will constitute capital
gains to such holder (assuming the shares are held as a capital asset).
If a Fund pays a dividend in January which was declared in the previous
October, November or December to stockholders of record on a specified date
in one of such months, then such dividend is treated for tax purposes as
paid by the Fund and received by its stockholders on December 31 of the
year in which such dividend was declared.
The Code requires a RIC to
pay a nondeductible 4% excise tax to the extent it does not distribute during
each calendar year 98% of its ordinary income, determined on a calendar
year basis, and 98% of its capital gains, determined in general, on an October
31 year-end, plus certain undistributed amounts from previous years. The
required distributions, however, are based only on the taxable income of
a RIC. The excise tax, therefore, generally does not apply to the tax-exempt
income of RICs, such as the Funds, that pay exempt-interest dividends.
The Code subjects interest
received on certain otherwise tax-exempt securities to a Federal alternative
minimum tax. The alternative minimum tax applies to interest received on
activity bonds issued after August 7, 1986. As set forth above,
private activity bonds are bonds which, although tax-exempt,
are used for purposes other than those generally performed by governmental
units and which benefit non-governmental entities (
e.g
., bonds used
for industrial development or housing purposes). Income received on such
bonds is classified as an item of tax preference which could
subject investors in such bonds, including stockholders of the Funds, to
an increased Federal alternative minimum tax. Each Fund purchases such private
activity bonds and reports to stockholders within 60 days after calendar
year-end the portion of its dividends declared during the year which constitutes
an item of tax preference for alternative minimum tax purposes. The Code
further provides that corporations are subject to a Federal alternative
minimum tax based, in part, on certain differences between taxable income
as adjusted for other tax preferences and the corporations adjusted
current earnings which more closely reflect a corporations economic
income. Because an exempt-interest dividend paid by a Fund is included in
adjusted current earnings, a corporate stockholder may be required to pay
a Federal alternative minimum tax on exempt-interest dividends paid by such
Fund.
Each Fund may invest in high yield securities
or junk bonds. Furthermore, the Funds may also invest in instruments
the return on which includes nontraditional features such as indexed principal
or interest payments (nontraditional instruments). These investments
may be subject to special tax rules under which a Fund may be required to
accrue and distribute income before amounts due under the obligations are
paid. In addition, it is
30
possible that all or a portion of the interest payments on
such junk bonds and/or nontraditional instruments could be recharacterized
as taxable ordinary income.
The value of shares acquired
pursuant to a Funds dividend reinvestment plan is generally excluded
from gross income to the extent that the cash amount reinvested would be
excluded from gross income. If, in the case of MuniAssets, when MuniAssets
shares are trading at a premium over net asset value, MuniAssets issues
shares pursuant to the dividend reinvestment plan that have a greater fair
market value than the amount of cash reinvested, it is possible that all
or a portion of such discount (which may not exceed 5% of the fair market
value of such Funds shares) could be viewed as a taxable distribution.
If the discount is viewed as a taxable distribution, it is also possible
that the taxable character of this discount would be allocable to all of
the stockholders, including stockholders who do not participate in MuniAssets
dividend reinvestment plan. Thus, stockholders who do not participate in
the dividend reinvestment plan, as well as dividend reinvestment plan participants,
might be required to report as ordinary income a portion of their distributions
equal to the allocable share of the discount.
Under certain provisions of
the Code, some stockholders may be subject to a withholding tax on certain
ordinary income dividends and on capital gain dividends and redemption payments
(backup withholding). Generally, stockholders subject to backup
withholding will be those for whom no taxpayer identification number is
on file with a Fund or who, to that Funds knowledge, have furnished
an incorrect number. When establishing an account, an investor must certify
under penalty of perjury that such number is correct and that such stockholder
is not otherwise subject to backup withholding.
Ordinary income dividends paid
to stockholders who are nonresident aliens or foreign entities are subject
to a 30% United States withholding tax under existing provisions of the
Code applicable to foreign individuals and entities unless a reduced rate
of withholding or a withholding exemption is provided under applicable treaty
law. Nonresident stockholders are urged to consult their own tax advisers
concerning the applicability of the United States withholding tax.
The Code provides that every
stockholder required to file a tax return must include for information purposes
on such return the amount of exempt-interest dividends received from all
sources (including the Funds) during the taxable year.
Tax Treatment of Options and Futures
Transactions
<R>Each Fund may purchase
or sell municipal bond index financial futures contracts and interest rate
financial futures contracts on U.S. Government securities. Each Fund may
also purchase and write call and put options on such financial futures contracts.
In general, unless an election is available to a Fund or an exception applies,
such options and financial futures contracts that are Section 1256
contracts will be marked to market for Federal income
tax purposes at the end of each taxable year (
i.e
., each such option
or financial futures contract will be treated as sold for its fair market
value on the last day of the taxable year), and any gain or loss attributable
to Section 1256 contracts will be 60% long-term and 40% short-term capital
gain or loss. Application of these rules to Section 1256 contracts held
by a Fund may alter the timing and character of distributions to stockholders.
The mark-to-market rules outlined above, however, will not apply to certain
transactions entered into by a Fund solely to reduce the risk of changes
in price or interest rates with respect to its investments.</R>
Code Section 1092, which applies
to certain straddles, may affect the taxation of a Funds
sales of securities and transactions in financial futures contracts and
related options. Under Section 1092, a Fund may be required to postpone
recognition for tax purposes of losses incurred in certain sales of securities
and certain closing transactions in financial futures contracts or the related
options.
The foregoing is a general
and abbreviated summary of the applicable provisions of the Code and Treasury
Regulations presently in effect. For the complete provisions, reference
should be made to the pertinent Code sections and the Treasury Regulations
promulgated thereunder. The Code and the Treasury Regulations, are subject
to change by legislative, judicial or administrative action either prospectively
or retroactively.
Stockholders are urged to consult
their tax advisers regarding specific questions as to Federal, foreign,
state or local tax consequences of an investment in a Fund.
31
AGREEMENT AND PLAN OF
REORGANIZATION
General
Under the Agreement and Plan
(attached hereto as Appendix II), MuniAssets will acquire substantially
all of the assets, and will assume substantially all of the liabilities,
of High Income Municipal, solely in return for shares of an equal aggregate
value of MuniAssets Common Stock to be issued by MuniAssets. The number
of shares of MuniAssets Common Stock issued to High Income Municipal will
have an aggregate net asset value equal to the aggregate net asset value
of the shares of High Income Municipal Common Stock. Upon receipt by High
Income Municipal of such shares, High Income Municipal will distribute the
shares of MuniAssets Common Stock to the holders of High Income Municipal
Common Stock (plus cash in lieu of fractional shares), in return for their
shares of High Income Municipal Common Stock. As soon as practicable after
the date that the Reorganization takes place (the Closing Date),
High Income Municipal will deregister under the Investment Company Act and
will file Articles of Dissolution with the State of Maryland Department
of Assessments and Taxation (Maryland Department) to effect
the formal dissolution of High Income Municipal, and will dissolve.
<R>The distribution by
High Income Municipal of MuniAsset Common Stock will be accomplished by
opening new accounts on the books of MuniAssets in the names of the stockholders
of High Income Municipal Common Stock and transferring to those stockholder
accounts the MuniAssets Common Stock previously credited on those books
to the accounts of High Income Municipal. Each newly-opened account on the
books of MuniAssets for the previous holders of High Income Municipal Common
Stock would represent the pro rata number of shares of MuniAssets Common
Stock (rounded down, in the case of fractional shares, to the next largest
number of whole shares) due such holder of Common Stock. No fractional shares
of MuniAssets Common Stock will be issued. In lieu thereof, MuniAssets
transfer agent, BONY, will aggregate all fractional shares of MuniAssets
Common Stock and sell the resulting whole shares on the NYSE for the account
of all holders of fractional interests, and each such holder will be entitled
to the pro rata share of the proceeds from such sale upon surrender of High
Income Municipal Common Stock certificates. See Surrender and Exchange
of Stock Certificates below for a description of the procedures to
be followed by the stockholders of High Income Municipal to obtain their
MuniAssets Common Stock (and cash in lieu of fractional shares, if any).
Accordingly, as a result of
the Reorganization, every holder of High Income Municipal Common Stock would
own shares of MuniAssets Common Stock that (except for cash payments received
in lieu of fractional shares) would have an aggregate net asset value immediately
after the Closing Date equal to the aggregate net asset value of that stockholders
High Income Municipal Common Stock immediately prior to the Closing Date.
Since the MuniAssets Common Stock would be issued at net asset value and
the shares of High Income Municipal Common Stock would be valued at net
asset value for the purposes of the exchange, the holders of Common Stock
of neither Fund will be diluted as a result of the Reorganization. However,
as a result of the Reorganization, a stockholder of either Fund likely will
hold a reduced percentage of ownership in the larger combined entity than
he or she held in MuniAssets or High Income Municipal. In addition, the
market value of the MuniAssets Common Stock may be lower than the net asset
value of the MuniAssets Common Stock. </R>
Procedure
<R>At a meeting of the
Board of Directors of each Fund, the Board of Directors of each Fund, including
all of the Directors who are not interested persons, as defined
in the Investment Company Act, of the applicable Fund, unanimously approved
the Agreement and Plan and the submission of such Agreement and Plan to
the stockholders of such Fund for approval.</R>
As a result of such Board approvals,
the Funds have filed this Joint Proxy Statement and Prospectus with the
SEC soliciting a vote of the stockholders of each Fund to approve the Reorganization.
Meetings of stockholders of each Fund will be held on October 24, 2001.
If the stockholders of both Funds approve the Reorganization, the Reorganization
will take place as soon as practicable after such approval, provided that
the Funds have obtained prior to that time an opinion of counsel concerning
the tax consequences of the Reorganization as set forth in the Agreement
and Plan.
The Boards of Directors
of MuniAssets and High Income Municipal recommend that the stockholders
of the respective Funds approve the Agreement and Plan
.
32
Terms of the Agreement and Plan of Reorganization
The following is a summary
of the significant terms of the Agreement and Plan. This summary is qualified
in its entirety by reference to the Agreement and Plan, attached hereto
as Appendix II
.
Valuation of Assets and
Liabilities
. The respective assets of each Fund will be valued on the
business day prior to the Closing Date (the Valuation Date).
The valuation procedures are the same for both Funds: the net asset value
per share of the Common Stock of each Fund will be determined as of the
close of business on the NYSE based on prices at the time of closing on
the Valuation Date. The NYSE generally closes at 4:00 p.m., Eastern time.
For the purpose of determining the net asset value of a share of Common
Stock of each Fund, the value of the securities held by the issuing Fund
plus any cash or other assets (including interest accrued but not yet received)
minus all liabilities (including accrued expenses) is divided by the total
number of shares of Common Stock of the issuing Fund outstanding at such
time. Daily expenses, including the fees payable to FAM or MLIM, will accrue
on the Valuation Date.
The Municipal Bonds in which
each Fund invests are traded primarily in the over-the-counter markets.
In determining net asset value on the Valuation Date, each Fund will use
the valuations of portfolio securities furnished by a pricing service approved
by the Boards of Directors of the Funds. The pricing service typically values
portfolio securities at the bid price or the yield equivalent when quotations
are readily available. Municipal Bonds for which quotations are not readily
available will be valued at fair market value on a consistent basis as determined
by the pricing service using a matrix system to determine valuations. The
Boards of Directors of the Funds have determined in good faith that the
use of a pricing service is a fair method of determining the valuation of
portfolio securities. Positions in financial futures contracts will be valued
on the Valuation Date at closing prices for such contracts established by
the exchange on which they are traded, or if market quotations are not readily
available, will be valued at fair value on a consistent basis using methods
determined in good faith by each Board of Directors.
Distribution of MuniAssets
Common Stock
. On the Closing Date, MuniAssets will issue to High Income
Municipal a number of shares of MuniAssets Common Stock the aggregate net
asset value of which will equal the aggregate net asset value of shares
of High Income Municipal Common Stock on the Valuation Date. Each holder
of High Income Municipal Common Stock will receive the number of full shares
of MuniAssets Common Stock corresponding to his or her proportionate interest
in the aggregate net asset value of High Income Municipal Common Stock (plus
cash in lieu of fractional shares).
No sales charge or fee of any
kind will be charged to stockholders of High Income Municipal in connection
with their receipt of MuniAssets Common Stock in the Reorganization. No
EWC will apply to shares of MuniAssets Common Stock issued to High Income
Municipal in the Reorganization, nor will any EWC be due on the shares of
High Income Municipal Common Stock in connection with the Reorganization.
<R>
Expenses
.
The expenses of the Reorganization that are directly attributable to High
Income Municipal and the conduct of its business will be deducted from the
assets of High Income Municipal as of the Valuation Date. These expenses
are expected to include transfer agent fees, the expenses incurred in preparing,
printing and mailing the proxy materials to be used in connection with the
meeting of the stockholders of High Income Municipal to consider the Reorganization,
the expenses related to the solicitation of proxies to be voted at that
meeting and a portion of the expenses incurred in printing the N-14 Registration
Statement. The expenses of the Reorganization that are directly attributable
to MuniAssets and the conduct of its business will be deducted from the
assets of MuniAssets as of the Valuation Date. The expenses attributable
to MuniAssets include the costs, if any, of printing stock certificates,
transfer agent fees, the expenses incurred in preparing, printing and mailing
the proxy materials to be used in connection with the meeting of the stockholders
of MuniAssets to consider the Reorganization, the expenses related to the
solicitation of proxies to be voted at that meeting and a portion of the
expenses incurred in printing the N-14 Registration Statement. Certain other
expenses of the Reorganization, including expenses in connection with obtaining
an opinion of counsel as to certain tax matters, the preparation of the
Agreement and Plan, legal fees, audit fees and any listing or registration
fees, will be borne equally by the Funds.</R>
The total expenses associated
with the Reorganization attributable to High Income Municipal are estimated
to be approximately $158,000 and the total expenses attributable to MuniAssets
are estimated to be approximately $145,900.
Required Approvals
. Under High Income
Municipals Articles of Incorporation and relevant Maryland law, stockholder
approval of the Agreement and Plan requires the affirmative vote of a majority
of the outstanding
33
<R>shares of High Income Municipal Common Stock entitled
to vote on the matter. In addition, under the rules of the NYSE, stockholder
approval of the Agreement and Plan requires the affirmative vote of a majority
of the votes cast by the holders of MuniAssets Common Stock, provided that
the total number of votes cast represents over 50% of all shares entitled
to vote on the matter. Because of the requirement that the Agreement and
Plan be approved by the stockholders of both Funds, the Reorganization will
not take place if the stockholders of either Fund do not approve the Agreement
and Plan.</R>
Deregistration and Dissolution
.
Following the transfer of the assets and liabilities of High Income Municipal
and the distribution of shares of MuniAssets Common Stock to stockholders
of High Income Municipal in accordance with the foregoing, High Income Municipal
will terminate its registration under the Investment Company Act and its
incorporation under Maryland law and will withdraw its authority to do business
in any state where it is required to do so.
Amendments and Conditions
.
The Agreement and Plan may be amended at any time prior to the Closing Date
with respect to any of the terms therein. The obligations of each Fund pursuant
to the Agreement and Plan are subject to various conditions, including a
registration statement on Form N-14 being declared effective by the SEC,
approval by the stockholders of each Fund as described above, an opinion
of counsel being received with respect to tax matters, an opinion of counsel
being received as to securities matters and the continuing accuracy of various
representations and warranties of each Fund being confirmed by the other
Fund.
Postponement, Termination
.
Under the Agreement and Plan, the Board of Directors of either Fund may
cause the Reorganization to be postponed or abandoned under certain circumstances
should such Board determine that it is in the best interests of the stockholders
of that Fund to do so. The Agreement and Plan may be terminated, and the
Reorganization abandoned at any time (whether before or after adoption thereof
by the stockholders of either Fund) prior to the Closing Date, or the Closing
Date may be postponed: (i) by mutual consent of the Boards of Directors
of both Funds and (ii) by the Board of Directors of either Fund if any condition
to that Funds obligations set forth in the Agreement and Plan has
not been fulfilled or waived by such Board.
Potential Benefits to Common Stockholders
of the Funds as a Result of the Reorganization
In approving the Reorganization,
the Board of Directors of each Fund identified certain potential benefits
that are likely to result from the Reorganization, including lower aggregate
operating expenses per share of Common Stock, greater efficiency and flexibility
in portfolio management and a more liquid trading market for the shares
of Common Stock of the Combined Fund. Following the Reorganization, (i)
High Income Municipal stockholders will be invested in a non-diversified,
closed-end fund that has a substantially similar investment objective and
management arrangements, a larger asset base and a potentially lower expense ratio and
(ii) MuniAssets stockholders will remain invested in a non-diversified,
closed-end fund that has no changes to its current investment objective
and management arrangements but has a larger asset base and a potentially
lower expense ratio.
After the Reorganization, High
Income Municipal common stockholders also will benefit from the fact that
the advisory fee rate that the Combined Fund will pay is less than the advisory
fee rate paid by High Income Municipal and that the Combined Fund will not
pay the administrative fee currently paid by High Income Municipal. See
Advisory and Administrative Fees above. Additionally, High Income
Municipal common stockholders will no longer be subject to the expenses
associated with the Funds required yearly prospectus updates since
a closed-end fund that is listed on an exchange, such as the Combined Fund,
is not required to update its prospectus annually. High Income Municipal
common stockholders also will no longer be subject to the expenses of conducting
quarterly tender offers. Finally, High Income Municipal common stockholders
will no longer be subject to the EWC upon the sale of shares of common stock
held for less than three years. As common stockholders of the Combined Fund,
however, High Income Municipal common stockholders will be subject to the
expenses associated with listing of the Combined Funds shares on the
NYSE and the Combined Funds required annual meeting of stockholders
including the cost of the preparation and dissemination of proxy materials.
They may also be subject to brokerage commissions on transactions in Fund
shares. After the Reorganization, MuniAssets stockholders will benefit from
the larger asset base and potentially lower expense ratio of the Combined
Fund.
The Boards also considered
the possible risks and costs of combining the Funds, and examined the relative
credit strength, maturity characteristics, mix of type and purpose, and
yield of the Funds portfolios of Municipal Bonds and the costs involved
in a transaction such as the Reorganization. The Boards noted the many similarities
34
between the Funds, including their substantially similar
investment objectives and investment policies, their use of substantially
the same management personnel and their similar portfolios of Municipal
Bonds. The Boards also considered the relative tax positions of the portfolios
of the Funds.
The Combined Fund that would result from the
Reorganization would have a larger asset base than either Fund has currently.
Based on data presented by FAM and MLIM, certain fixed costs, such as costs
of printing stockholder reports and proxy statements, legal expenses, audit
fees, mailing costs and other expenses will be spread across a larger asset
base, thereby lowering the expense ratio and increasing earnings per common
share for the Combined Fund. Due to the larger asset base, the Combined
Fund may also experience economies of scale and greater flexibility in portfolio
management.
The proposed Reorganization
will also provide High Income Municipal common stockholders with additional
liquidity. After the Reorganization, High Income Municipal common stockholders
will own shares of MuniAssets, an exchange listed fund, which will enable
such stockholders to sell their Common Stock on the NYSE on each day the
NYSE is open for trading. Any such sales, however, will be made at the then
current market price, which may be at a premium above or a discount from
the Combined Funds net asset value, and may be subject to a brokerage
commission. As noted above, such shares will not be subject to the EWC currently
applicable to High Income Municipal Common Stock.
Presently, High Income Municipal
common stockholders may only sell their shares at such times as High Income
Municipal tenders for its shares, which has occurred once each quarter.
In a tender offer, High Income Municipal purchases shares at net asset value
(less any applicable EWC). The Board of Directors of High Income Municipal,
however, is not obligated to authorize tender offers. Consequently, if the
Board does not authorize a tender offer, there may be periods of time during
which High Income Municipals common stockholders may be unable to
sell their shares. Since the inception of High Income Municipal, however,
the Board has authorized a tender offer each quarter.
The table below sets forth
the total annualized operating expense ratio for MuniAssets and High Income
Municipal and the Combined Fund based on their respective average net assets
as of May 31, 2001.
as of
May 31, 2001
Expense Ratio
MuniAssets
High Income Municipal
Combined Fund
<R>Management projections
estimate that the Combined Fund will have net assets in excess of $270 million
(based on the Net assets of the Funds as of July 31, 2001) upon completion
of the Reorganization. A larger asset base should provide benefits in portfolio
management. After the Reorganization, the Combined Fund should be able to
purchase larger amounts of Municipal Bonds at more favorable prices than
either Fund separately and, with this greater purchasing power, request
improvements in the terms of the Municipal Bonds (
e.g.
, added indenture
provisions covering call protection, sinking funds and audits for the benefit
of large holders) prior to purchase.</R>
Based on the foregoing, the
Board of Directors of each Fund concluded that the Reorganization is in
the best interests of the stockholders of that Fund because the Reorganization
presents no significant risks or costs (including legal, accounting and
administrative costs) that would outweigh the potential benefits discussed
above.
In approving the Reorganization,
the Board of Directors of each Fund determined that the Reorganization is
in the best interests of that Fund and, with respect to net asset value,
that the interests of existing stockholders of that Fund would not be diluted
as a result of the Reorganization.
Surrender and Exchange of Stock Certificates
After the Closing Date, each
holder of an outstanding certificate or certificates formerly representing
shares of High Income Municipal Common Stock will be entitled to receive,
upon surrender of his or her certificate or certificates, a certificate
or certificates representing the number of shares of MuniAssets Common Stock
distributable with respect to such holders shares of High Income Municipal
Common Stock, together with cash in lieu of any fractional shares of Common
Stock. Promptly after the Closing Date, the transfer agent for the MuniAssets
Common Stock will mail to each holder of certificates formerly representing
shares of High Income Municipal Common Stock a letter of transmittal for
use in surrendering his or her certificates for certificates representing
shares of MuniAssets Common Stock and cash in lieu of any fractional shares
of Common Stock.
35
Please do not send in
any stock certificates at this time. Upon consummation of the Reorganization,
common stockholders of High Income Municipal will be furnished with instructions
for exchanging their stock certificates for MuniAssets stock certificates
and, if applicable, cash in lieu of fractional shares
.
If Prior to the Reorganization You Held:
After the Reorganization, You Will Hold:
High Income Municipal Common Stock
MuniAssets Common Stock
MuniAssets Common Stock
MuniAssets Common Stock
From and after the Closing
Date, certificates formerly representing shares of High Income Municipal
Common Stock will be deemed for all purposes to evidence ownership of the
number of full shares of MuniAssets Common Stock distributable with respect
to the shares of High Income Municipal held before the Reorganization as
described above, provided that, until such stock certificates have been
so surrendered, no dividends payable to the holders of record of High Income
Municipal Common Stock as of any date subsequent to the Closing Date will
be paid to the holders of such outstanding stock certificates. Dividends
payable to holders of record of shares of MuniAssets Common Stock as of
any date after the Closing Date and prior to the exchange of certificates
by any stockholder of High Income Municipal, will be paid to such stockholder,
without interest, at the time such stockholder surrenders his or her stock
certificates for exchange.
From and after the Closing
Date, there will be no transfers on the stock transfer books of High Income
Municipal. If, after the Closing Date, certificates representing shares
of High Income Municipal Common Stock are presented to MuniAssets, they
will be canceled and exchanged for certificates representing MuniAssets
Common Stock and cash in lieu of fractional shares of Common Stock, if any,
distributable with respect to such Common Stock in the Reorganization.
Tax Consequences of the Reorganization
36
shares were held as a capital asset; (viii) in accordance
with Section 1223 of the Code, MuniAssets holding period with respect
to the assets of High Income Municipal transferred will include the period
for which such assets were held by High Income Municipal; (ix) the payment
of cash to common stockholders of High Income Municipal in lieu of fractional
shares of MuniAssets Common Stock will be treated as though the fractional
shares were distributed as part of the Reorganization and then redeemed,
with the result that such stockholders will have short- or long-term capital
gain or loss to the extent that the cash distribution differs from the stockholders
basis allocable to the MuniAssets fractional shares; and (x) the taxable
year of High Income Municipal will end on the effective date of the Reorganization,
and pursuant to Section 381(a) of the Code and regulations thereunder, MuniAssets
will succeed to and take into account certain tax attributes of High Income
Municipal, such as earnings and profits, capital loss carryovers and method
of accounting.
Under Section 381(a) of the
Code, MuniAssets will succeed to and take into account certain tax attributes
of High Income Municipal, including, but not limited to, earnings and profits,
any net operating loss carryovers, any capital loss carryovers and method
of accounting. The Code, however, contains special limitations with regard
to the use of net operating losses, capital losses and other similar items
in the context of certain reorganizations, including tax-free reorganizations
pursuant to Section 368(a)(1)(C) of the Code, which could reduce the benefit
of these attributes to MuniAssets.
Stockholders should consult
their tax advisers regarding the effect of the Reorganization in light of
their individual circumstances. As the foregoing relates only to Federal
income tax consequences, stockholders also should consult their tax advisers
as to the foreign, state and local tax consequences of the Reorganization.
<R>
Regulated Investment
Company Status
. The Funds have elected and qualified since inception
for taxation as RICs under Sections 851-855 of the Code, and after the Reorganization
MuniAssets intends to continue to so qualify.</R>
Capitalization
The following table sets forth
as of May 31, 2001 (i) the capitalization of MuniAssets, (ii) the capitalization
of High Income Municipal, (iii) the capitalization of the Combined Fund
as adjusted to give effect to the Reorganization.
Capitalization of MuniAssets, High Income
Municipal,
and the Combined Fund as of May 31, 2001
(unaudited)
Municipal
Adjustment
Fund
as Adjusted(a)
Net Assets Attributable to
Common Stock
$135,448,485
$129,598,228
$(1,149,363)
Shares of Outstanding Common
Stock
10,454,359
13,883,974
(3,819,685)
(b)
Net Asset Value Per Share
$ 12.96
$ 9.33
(c)
(a)
The adjusted balances are presented as if the
Reorganization had been consummated on May 31, 2001 and are for informational
purposes only. Assumes distribution of undistributed net investment income
and accrual of estimated Reorganization expenses of approximately $303,900,
of which $145,900 is attributable to Muni Assets and $158,000 is attributable
to High Income Municipal. No assurance can be given about how many shares
of MuniAssets Common Stock will be received by holders of High Income Municipal
Common Stock on the Closing Date, and the foregoing should not be relied
upon to reflect the number of shares of MuniAssets Common Stock that actually
will be received on or after such date.
(b)
Assumes the issuance of 10,064,289 shares of
MuniAssets Common Stock in exchange for the net assets of High Income Municipal.
The estimated number of shares issued was based on the net asset value of
each Fund, net of distributions, on May 31, 2001.
(c)
Net Asset Value Per Share of Common Stock net
of Reorganization-related expenses of $303,900 and distribution of undistributed
net investment income of $845,463 for MuniAssets.
ITEM 2. ELECTION OF DIRECTORS
OF MUNIASSETS
<R>At the MuniAssets
Meeting, two Class I Directors will be elected to serve for a term of three
years and until their successors are elected and qualified. Pursuant to
MuniAssets By-Laws, the terms of office of the Directors are staggered.
The Board of Directors is divided into three classes, designated Class I,
Class II and Class III, with each class having a term of three years. Each
year the term of one class expires. Class I consists of Joe Grills and Robert
S. Salomon, Jr. Class II consists of Terry K. Glenn and Walter Mintz. Class
III consists of Melvin R. Seiden and Stephen B. Swensrud. Only the Directors
in Class I are being considered for election at this Meeting.</R>
If the stockholders of both
Funds approve the Reorganization, then the Board of Directors of MuniAssets
will serve as the Board of the Combined Fund, until the next annual meeting
of stockholders of the Combined Fund. If the stockholders of either Fund
do not approve the Reorganization, then the Class I Directors of
37
MuniAssets elected at the Meeting and the incumbent Class
II and Class III Directors of MuniAssets will continue to serve until the
next annual meeting of stockholders of MuniAssets and the Board of High
Income Municipal will continue to serve for an indefinite term. It is intended
that all properly executed proxies submitted by MuniAssets stockholders
will be voted (unless such authority has been withheld in the proxy) in
favor of the two (2) persons designated as Class I Directors to be elected
by the MuniAssets stockholders.
The Board of Directors of MuniAssets knows
of no reason why either of these nominees will be unable to serve, but in
the event of any such unavailability, the proxies received will be voted
for such substitute nominee or nominees as the Board of Directors may recommend.
Certain information concerning
the nominees is set forth below. Additional information relevant to the
election of two Class I Directors and other information concerning the Directors
is set forth in Appendix I. As of the Record Date, the Directors owned no
shares of MuniAssets Common Stock.
Name and Address of Nominee
Age
Principal Occupation During
Past
Five Years and Public Directorships(1)
Joe Grills(1)(2)(3)
P.O. Box 98
Rapidan, Virginia 22733
66
Member of the Committee on Investment
of Employee Benefit Assets of the Financial Executives Institute (now associated
with the Association of Financial Professionals) (CIEBA) since
1986; Member of CIEBAs Executive Committee since 1988 and its Chairman
from 1991 to 1992; Assistant Treasurer of International Business Machines
Corporation (IBM) and Chief Investment Officer of IBM Retirement
Funds from 1986 until 1993; Member of the Investment Advisory Committee
of the State of New York Common Retirement Fund since 1989; Member of the
Investment Advisory Committee of the Howard Hughes Medical Institute from
1997 to 2000; Director, Duke Management Company since 1992 and elected Vice
Chairman in May 1998; Director, LaSalle Street Fund from 1995 to 2001; Trustee
of Mercury HW Funds, Mercury HW Variable Trust and Fund Asset Management
Master Trust and Director of Merrill Lynch Investment Managers Funds, Inc.
since 1996; Director, Kimco Realty Corporation since 1997; Member of the
Investment Advisory Committee of the Virginia Retirement System since 1998;
Director, Montpelier Foundation since December 1998 and its Vice Chairman
since 2000; Member of the Investment Committee of the Woodberry Forest School
since 2000; Member of the Investment Committee of the National Trust for
Historic Preservation since 2000.
Robert S. Salomon, Jr. (1)(2)
106 Dolphin Cove Quay
Stamford, Connecticut 06902
64
Principal of STI Management
(investment
adviser) since 1994; Trustee, Commonfund since
1980; Chairman and CEO of Salomon Brothers
Asset Management from 1992 until 1995;
Chairman of Salomon Brothers equity mutual
funds from 1992 until 1995; regular columnist
with
Forbes
magazine since 1992; Director of
Stock Research and U.S. Equity Strategist at
Salomon Brothers from 1975 until 1991.
(1)
Each of the Directors is a director, trustee
or member of an advisory board of certain other investment companies for
which FAM, MLIM or their affiliates act as investment adviser. See Compensation
from MuniAssets and High Income Municipal in Appendix I.
(2)
Member of Audit Committee of the Board of Directors.
(3)
Mr. Grills, formerly a Class II Director, was
redesignated as a Class I Director at a meeting of the Board of Directors
held on July 11, 2001. </R>
38
Committee Report
<R>The Board of MuniAssets
has a standing Audit Committee (the Committee), which consists
of Board members who are not interested persons of the Fund
within the meaning of the Investment Company Act and who are independent
as defined in the NYSE listing standards. Currently, Messrs. Grills, Mintz,
Salomon, Seiden and Swensrud are members of the Committee. The principal
responsibilities of the Committee are to: (i) recommend to the Board the
selection, retention or termination of the Funds independent auditors;
(ii) review with the independent auditors the scope, performance and anticipated
cost of their audit; (iii) discuss with the independent auditors certain
matters relating to the Funds financial statements, including any
adjustment to such financial statements recommended by such independent
auditors, or any other results of any audit; (iv) ensure that the independent
auditors submit on a periodic basis a formal written statement with respect
to their independence, discuss with the independent auditors any relationships
or services disclosed in the statement that may impact the objectivity and
independence of the Funds independent auditors and recommend that
the Board take appropriate action in response thereto to satisfy itself
of the independent auditors independence; and (v) consider the comments
of the independent auditors and managements responses thereto with
respect to the quality and adequacy of the Funds accounting and financial
reporting policies and practices and internal controls. The Board adopted
an Audit Committee Charter (the Charter) at a meeting held on
June 6, 2000. The Board revised and reapproved the Charter on April 11,
2001. A copy of the current Charter is attached to this Proxy Statement
as Appendix IV. The Committee also has (a) received written disclosures
and the letter required by Independence Standards Board Standard No. 1 from
Deloitte & Touche
LLP
(D&T), independent
auditors for the Fund, and (b) discussed certain matters required to be
discussed by Statements on Auditing Standards No. 61 with D&T. The Committee
has considered whether the provision of non-audit services by the Funds
independent auditors is compatible with maintaining the independence of
those auditors.</R>
At its meeting held on July
11, 2001, the Committee reviewed and discussed the audit of the Funds
financial statements with Fund management and D&T
.
Had any material concerns arisen during the course of the audit and the
preparation of the audited financial statements mailed to stockholders and
included in the Funds Annual Report, the Committee would have been
notified by Fund management or D&T. The Committee received no such notifications.
Based on the foregoing, the Committee recommended to the Board that the
Funds audited financial statements be included in the Funds
Annual Report to Stockholders for the fiscal year ended May 31, 2001.
In addition to the above, the
Committee also reviews and nominates candidates to serve as non-interested
Board members. The Committee generally will not consider nominees recommended
by stockholders of a Fund. The non-interested Board members have retained
independent legal counsel to assist them in connection with these duties.
Committee and Board Meetings
During the Funds last
fiscal year, each of the Board members then in office attended at least
75% of the aggregate of the total number of meetings of the Board held during
the fiscal year and, if a member, of the total number of meetings of the
Committee held during the period for which he served. See Appendix I for
further information about Committee and Board meetings.
Independent Auditors Fees
The following table sets forth
the aggregate fees MuniAssets paid D&T for the fiscal year ended May
31, 2001 for professional services rendered for: (i) the audit of the Funds
annual financial statements and the review of financial statements included
in the Funds reports to shareholders; (ii) financial information systems
design and implementation services provided to the Fund, FAM and entities
controlling, controlled by or under common control with FAM that provide
services to the Fund; and (iii) all other non-audit services provided to
the Fund, FAM, and entities controlling, controlled by or under common control
with FAM that provide services to the Fund. The Committee determined that
the provision of information technology services under clause (ii) and the
provision of non-audit services under clause (iii) are compatible with maintaining
the independence of the independent auditors.<R>
Audit Fees Charged
to the Fund
Financial Information
Systems Design
and Implementation Fees
All Other Fees*
$30,700
None
$3,401,400
</R>
*
Includes fees billed for non-audit services rendered to MuniAssets, FAM and any entity controlling, controlled by, or under common control with FAM, during the year ended December 31, 2000.
39
Compliance with Section 16(a) of the
Securities Exchange Act of 1934
Section 16(a) of the Securities
Exchange Act of 1934, as amended (the Exchange Act), requires
the officers and directors of the Fund and persons who own more than ten
percent of a registered class of the Funds equity securities, to file
reports of ownership and changes in ownership on Forms 3, 4 and 5 with the
SEC and the NYSE. Officers, directors and greater than ten percent stockholders
are required by SEC regulations to furnish the Fund with copies of all Forms
3, 4 and 5 they file.
<R>Based solely on the
Funds review of the copies of such forms, and amendments thereto,
furnished to it during or with respect to its most recent fiscal year, and
written representations from certain reporting persons that they were not
required to file Form 5 with respect to the most recent fiscal year, each
Fund believes that all of its officers, directors, greater than ten percent
beneficial owners and other persons subject to Section 16 of the Exchange
Act because of the requirements of Section 30 of the Investment Company
Act,
i.e
., any advisory board member, investment adviser or affiliated
person of the Funds investment adviser, have complied with all filing
requirements applicable to them with respect to transactions during the
Funds most recent fiscal year, except that Michael G. Clark inadvertently
made a late Form 4 filing reporting changes in beneficial ownership with
respect to MuniAssets.</R>
Interested Persons
MuniAssets considers Mr. Glenn
to be an interested person of the Fund within the meaning of
Section 2(a)(19) of the Investment Company Act because of the positions
he holds with FAM and its affiliates and/or due to his ownership of securities
issued by ML & Co. Mr. Glenn is the President of the Fund.
Compensation of Directors
FAM, the investment adviser
of MuniAssets, pays all compensation to all officers of and all Directors
of MuniAssets who are affiliated with ML & Co. or its subsidiaries.
The Fund pays each Director not affiliated with FAM (each a non-affiliated
Director) an annual fee plus a fee for each meeting attended, and
the Fund also pays each member of the Committee an annual fee plus a fee
for each meeting attended, together with such Directors out-of-pocket
expenses relating to attendance at each Board and Committee meeting. Information
with respect to fees and expenses paid to the non-interested Directors for
the Funds most recently completed fiscal year is set forth in Appendix
I.
Officers of MuniAssets
Information regarding the officers
of MuniAssets is set forth in Appendix I. Officers of the Fund are elected
and appointed by the Board and hold office until they resign, are removed
or are otherwise disqualified to serve.
INFORMATION CONCERNING
THE MEETINGS
Date, Time and Place of Meetings
<R>The Meetings will
be held on October 24, 2001 at the offices of Fund Asset Management, L.P.
or Merrill Lynch Investment Managers, L.P., 800 Scudders Mill Road, Plainsboro,
New Jersey at 9:00 a.m. Eastern time (MuniAssets) and 10:00 a.m. Eastern
time (High Income Municipal).</R>
Solicitation, Revocation and Use of Proxies
A stockholder executing and
returning a proxy has the power to revoke it at any time prior to its exercise
by executing a superseding proxy, by giving written notice of the revocation
to the Secretary of the appropriate Fund or by voting in person at the Meeting.
Although mere attendance at a Meeting will not revoke a proxy, a stockholder
present at a Meeting may withdraw his or her proxy and vote in person.
<R>All shares represented by properly
executed proxies, unless such proxies previously have been revoked, will
be voted at the Meetings in accordance with the directions on the proxies;
if no direction is indicated, the shares will be voted as follows: (i) for
the stockholders of MuniAssets only, all proxies submitted by MuniAssets
stockholders will be voted FOR the election of the Class I nominees
to the Board of Directors of MuniAssets, and (ii) for the stockholders of
both Funds, all proxies submitted by stockholders of MuniAssets and High
Income</R>
40
Municipal will be voted FOR the proposal to approve
the Agreement and Plan. It is not anticipated that any other matters will
be brought before the Meetings. If, however, any other business properly
is brought before the Meetings, proxies will be voted in accordance with
the judgment of the persons designated on such proxies.
Record Date and Outstanding Shares
Only holders of record of shares
of Common Stock of a Fund at the close of business on the Record Date are
entitled to vote at a Meeting or any adjournment thereof. At the close of
business on the Record Date, the Funds had the number of shares outstanding
listed in Appendix I to this Joint Proxy Statement and Prospectus.
Security Ownership of Certain Beneficial
Owners and Management
<R>To the knowledge of
the Funds, as of the Record Date, no person or entity owns beneficially
or of record 5% or more of the shares of the Common Stock of either Fund.
</R>
As of the Record Date, the
Directors and officers of MuniAssets as a group (11 persons) owned an aggregate
of less than 1% of the outstanding shares of MuniAssets Common Stock.
As of the Record Date, the
Directors and officers of High Income Municipal as a group (13 persons)
owned an aggregate of less than 1% of the outstanding shares of High Income
Municipal Common Stock.
On the Record Date, Mr. Glenn,
a Director and an officer of each Fund and the other officers of each Fund
owned an aggregate of less than 1% of the outstanding shares of Common Stock
of ML & Co.
Voting Rights and Required Vote
<R>For the purposes of
this Joint Proxy Statement and Prospectus, each share of Common Stock of
each Fund is entitled to one vote. Approval of the Agreement and Plan requires
the approval of each Fund. With respect to High Income Municipal, approval
of the Agreement and Plan requires the affirmative vote of stockholders
representing a majority of the shares of High Income Municipal Common Stock
entitled to vote on the matter. With respect to MuniAssets, approval of
the Agreement and Plan requires the affirmative vote of a majority of the
votes cast by the holders of MuniAssets Common Stock with respect to the
matter, provided that the total number of votes cast on the matter represents
over 50% of all shares entitled to vote on the matter.</R>
For purposes of any vote at
a Meeting that requires the approval of the outstanding shares of a Funds
Common Stock, a quorum consists of a majority of the shares entitled to
vote at that Meeting. If, by the time scheduled for each Meeting, a quorum
of the applicable Funds stockholders is not present, or if a quorum
is present but sufficient votes to act upon the Agreement and Plan are not
received from the stockholders of the applicable Fund, the persons named
as proxies may propose one or more adjournments of a Meeting to permit further
solicitation of proxies from stockholders. Any such adjournment will require
the affirmative vote of a majority of the shares of the applicable Fund
present in person or by proxy and entitled to vote at the session of a Meeting
to be adjourned. The persons named as proxies will vote in favor of any
such adjournment if they determine that adjournment and additional solicitation
are reasonable and in the interests of the applicable Funds stockholders.
No additional notice will be provided to you in the event that a Meeting
is adjourned unless otherwise required by applicable law.
With respect to the election
of two Class I Directors of MuniAssets, assuming a quorum is present, election
of each nominee requires the affirmative vote of a plurality of the votes
cast by MuniAssets stockholders. A plurality of the votes cast
means the candidates must receive more votes than any other candidates for
the same positions, but not necessarily a majority of votes cast.
Appraisal Rights
Under Maryland law, stockholders
of a company whose shares are not publicly traded are entitled to demand
payment for the fair value of their shares upon a transfer of assets. Since
High Income Municipal Common Stock is not publicly traded, High Income Municipal
stockholders will be entitled to appraisal rights upon the consummation
of the Reorganization.
Under Maryland law, a holder
of High Income Municipal Common Stock desiring to receive payment of the
fair value of his or her stock (an objecting stockholder) (i)
must file with High Income Municipal a written objection to the Reorganization
at or before the Meeting, (ii) may not vote in favor of the Reorganization
41
(although a vote against the Reorganization is not required),
and (iii) must make written demand on MuniAssets for payment of his or her
stock, stating the number and class of shares for which such stockholder
demands payment, within 20 days after the Maryland Department accepts for
filing the Articles of Transfer with respect to the Reorganization (MuniAssets
is required promptly to give written notice to all objecting stockholders
of the date that the Articles of Transfer are accepted for record). A vote
against the Reorganization will not be sufficient to satisfy the requirement
of a written demand described in clause (iii). An objecting stockholder
who fails to adhere to this procedure will be bound by the terms of the
Reorganization. An objecting stockholder who demands payment for his or
her stock pursuant to the procedure described above ceases to have any rights
of a stockholder except the right to receive fair value for his or her shares
and has no right to receive any dividends or distribution payable to such
holders on a record date after the close of business on the date on which
fair value is to be determined, which, for these purposes, will be the date
of the Meeting. A demand for payment of fair market value may not be withdrawn,
except upon the consent of MuniAssets. Within 50 days after the Articles
of Transfer have been accepted for filing, an objecting stockholder who
has not received payment for his or her shares may petition a court located
in Baltimore, Maryland for an appraisal to determine the fair value of his
or her stock.
ADDITIONAL INFORMATION
<R>The expenses of preparing,
printing and mailing the enclosed forms of proxy, the accompanying Notice
and this Joint Proxy Statement and Prospectus and the costs of soliciting
proxies to be voted at the Meetings will be borne by MuniAssets and High
Income -- Municipal. See Agreement and Plan of Reorganization -- Terms
of the Agreement and Plan of Reorganization Expenses.</R>
The Funds will reimburse banks,
brokers and others for their reasonable expenses in forwarding proxy solicitation
materials to the beneficial owners of shares of each Fund and certain persons
that the Funds may employ for their reasonable expenses in assisting in
the solicitation of proxies from such beneficial owners of shares of capital
stock of the Funds.
<R>In order to obtain
the necessary quorum at each Meeting, supplementary solicitation may be
made by mail, telephone, telegraph or personal interview by officers of
the Funds. Each Fund has retained Georgeson Shareholder, 17 State Street,
New York, New York 10004 to aid in the solicitation of proxies, at a cost
to be borne by MuniAssets and High Income Municipal of approximately $3,000
each, plus out-of-pocket expenses of approximately $5,000 and $7,500, respectively.
Broker-dealer firms, including
Merrill Lynch, holding Fund shares in street name for the benefit
of their customers and clients will request the instructions of such customers
and clients on how to vote their shares on each proposal before the Meetings.
MuniAssets understands that, under the rules of the NYSE, such broker-dealer
firms may, without instructions from their customers and clients, grant
authority to the proxies designated to vote on the election of the Class
I Directors of MuniAssets if no instructions have been received prior to
the date specified in the broker-dealer firms request for voting instructions.
With respect to shares of Common Stock of each Fund, broker-dealer firms,
including Merrill Lynch, will not be permitted to vote without instructions
with respect to the approval of the Agreement and Plan. Each Fund will include
shares held of record by broker-dealers as to which such authority has been
granted in its tabulation of the total number of shares present for purposes
of determining whether the necessary quorum of stockholders of that Fund
exists. Proxies that are returned to a Fund but that are marked abstain
or on which a broker-dealer has declined to vote on any proposal (broker
non-votes) will be counted as present for the purposes of determining
a quorum. Abstentions and broker non-votes will not be counted as votes
cast. Abstentions and broker non-votes, therefore, will not have an effect
on the vote on the election of the Class I Directors of MuniAssets. Abstentions
and broker non-votes will have the same effect as a vote against the Reorganization
with respect to High Income Municipal, but will have no effect on the vote
on the Reorganization with respect to MuniAssets assuming that, as required,
at least a majority of the votes have been cast on the Reorganization. </R>
This Joint Proxy Statement
and Prospectus does not contain all of the information set forth in the
registration statement and the exhibits relating thereto that MuniAssets
has filed with the SEC under the Securities Act of 1933, as amended, and
the Investment Company Act, to which reference is hereby made.
The Funds are subject to the informational
requirements of the Exchange Act and the Investment Company Act and in accordance
therewith are required to file reports, proxy statements and other information
with the SEC. Any such reports, proxy statements and other information can
be inspected and copied at the public
42
reference facilities of the SEC at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the following regional
offices of the SEC: Northeast Regional Office, at Seven World Trade Center,
13th Floor, New York, New York 10048; Pacific Regional Office, at 5670 Wilshire
Boulevard, 11th Floor, Los Angeles, California 90036; and Midwest Regional
Office, at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. Copies of such materials can be obtained from the public
reference section of the SEC at 450 Fifth Street, NW, Washington, DC 20549,
at prescribed rates. The SEC maintains a Web site at http://www.sec.gov
containing reports, proxy and information statements and other information
regarding registrants, including the Funds, that file electronically with
the SEC. Reports, proxy statements and other information concerning MuniAssets
can also be inspected at the offices of the NYSE, 20 Broad Street, New York,
New York 10005.
CUSTODIAN
BONY acts as the custodian
for cash and securities of MuniAssets and High Income Municipal and will
serve as custodian for the Combined Fund after the Reorganization. The principal
business address of BONY in such capacity is 90 Washington Street, New York,
New York 10286.
TRANSFER AGENT, DIVIDEND
DISBURSING AGENT AND REGISTRAR
BONY serves as the transfer
agent, dividend disbursing agent and registrar with respect to the Common
Stock of MuniAssets, pursuant to a registrar, transfer agency, dividend
disbursing agency and service agreement with MuniAssets. The principal business
address of BONY in such capacity is 101 Barclay Street, New York, New York
10286. It is anticipated that BONY will continue to provide these services
to the Combined Fund after the Reorganization.
FDS serves as the transfer
agent, dividend disbursing agent and registrar with respect to the Common
Stock of High Income Municipal, pursuant to a registrar, transfer agency,
dividend disbursing agency and service agreement with High Income Municipal.
The principal business address of FDS in such capacity is 4800 Deer Lake
Drive East, Jacksonville, Florida 32246-6484.
ACCOUNTING SERVICES PROVIDER
State Street provides certain
accounting services for MuniAssets and High Income Municipal and will provide
the same service to the Combined Fund after the Reorganization. The principal
business address of State Street in such capacity is 500 College Road East,
Princeton, New Jersey 08540.
LEGAL PROCEEDINGS
There are no material legal
proceedings to which MuniAssets or High Income Municipal is a party.
LEGAL OPINIONS
Certain legal matters in connection
with the Reorganization will be passed upon for High Income Municipal by
Sidley Austin Brown & Wood
LLP
, One World Trade
Center, New York, New York 10048 and for MuniAssets by Clifford Chance Rogers
& Wells
LLP
, 200 Park Avenue, New York, New York
10166. Sidley Austin Brown & Wood
LLP
, special
Maryland counsel and special tax counsel to MuniAssets, will render an opinion
to MuniAssets.
EXPERTS
The financial highlights of
MuniAssets and High Income Municipal included in this Joint Proxy Statement
and Prospectus, except for the financial highlights for the six month period
ended February 28, 2001 for High Income Municipal, have been so included
in reliance on the reports of Deloitte & Touche
LLP
,
independent auditors, given on their authority as experts in auditing and
accounting. The principal business address of Deloitte & Touche
LLP
is Two World Financial Center, New York, New York 10281-1008. Deloitte &
Touche
LLP
will serve as the independent auditors
for the Combined Fund after the Reorganization.
STOCKHOLDER PROPOSALS
<R>The 2002 Annual Meeting
of MuniAssets is expected to be held in August 2002. If a stockholder intends
to present a proposal at the 2002 Annual Meeting of Stockholders of MuniAssets
and desires to have the proposal included in the Funds proxy statement
and form of proxy for that meeting, the stockholder must send the written
</R>
43
<R>proposal to MuniAssets by March 17, 2002. Any stockholder
of MuniAssets who desires to present a proposal at the 2002 Annual Meeting
of Stockholders, without including such proposal in MuniAssets proxy
statement, must deliver written notice thereof to the Fund by May 31, 2002.
Written proposals should be sent to the Secretary of MuniAssets at the offices
of MuniAssets.</R>
High Income Municipal is not required, and
does not intend, to hold an Annual Meeting of Stockholders. Stockholders
wishing to submit proposals for inclusion in a proxy statement for a subsequent
stockholder meeting must send their written proposal to High Income Municipal
a reasonable time before the Board of Directors solicitation relating
to such meeting is to be made. Any stockholder who wishes to present any
proposal at any subsequent stockholder meeting, without including such proposal
in High Income Municipals proxy statement relating to the meeting,
also must send their written proposal to High Income Municipal within a
reasonable time before the Board of Directors solicitation relating
to such meeting is to be made. Written proposals should be sent to the Secretary
of High Income Municipal at the offices of High Income Municipal.
B
RADLEY
J. L
UCIDO
Secretary
MuniAssets Fund, Inc.
Secretary
Merrill Lynch High Income
Municipal Bond Fund, Inc.
<R>Plainsboro, New Jersey
Dated: September 10, 2001</R>
44
INDEX TO FINANCIAL STATEMENTS
Page
----
Audited Financial Statements for MuniAssets Fund, Inc.
for the Fiscal Year Ended May 31, 2001.............................F-2
Audited Financial Statements for Merrill Lynch High
Income Municipal Bond Fund, Inc. for the Fiscal
Year Ended August 31, 2000.........................................F-12
Unaudited Financial Statements for Merrill Lynch High
Income Municipal Bond Fund, Inc. for the
Six-Months Ended February 28, 2001.................................F-23
Unaudited Financial Statements for the Combined
Fund on a Pro Forma Basis, as of May 31, 2001......................F-33
F-1
Audited Financial Statements for
MuniAssets Fund, Inc.
for the Fiscal Year Ended May 31, 2001
F-2
<R>
MuniAssets Fund, Inc. May 31, 2001
<R>
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Shareholders,
MuniAssets Fund, Inc.:
We have audited the accompanying statement of assets, liabilities and capital,
including the schedule of investments, of MuniAssets Fund, Inc. as of May 31,
2001, the related statements of operations for the year then ended and changes
in net assets for each of the years in the two-year period then ended, and the
financial highlights for each of the years presented. These financial statements
and the financial highlights are the responsibility of the Fund's management.
Our responsibility is to express an opinion on these financial statements and
the financial highlights based on our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United States of America. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the financial
statements and the financial highlights are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements. Our procedures included confirmation of
securities owned at May 31, 2001 by correspondence with the custodian and
broker; where replies were not received from the broker, we performed other
auditing procedures. An audit also includes assessing the accounting principles
used and significant estimates made by management, as well as evaluating the
overall financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, such financial statements and financial highlights present
fairly, in all material respects, the financial position of MuniAssets Fund,
Inc. as of May 31, 2001, the results of its operations, the changes in its net
assets and the financial highlights for the respective stated periods in
conformity with accounting principles generally accepted in the United States of
America.
Deloitte & Touche LLP
New York, New York
June 27, 2001
F-3
<R>
MuniAssets Fund, Inc. May 31, 2001</R>
APPENDIX I
INFORMATION
PERTAINING TO EACH FUND
General Information Pertaining to
Each Fund
Fund
in Appendix I
Year End
Incorporation
Time
MuniAssets Fund, Inc.
MuniAssets
9:00 a.m.
Merrill Lynch High Income Municipal
Bond Fund, Inc.
High Income
Municipal
10:00 a.m.
<R>
Fund
Outstanding as of
the Record Date
MuniAssets
10.461,767
High Income Municipal
13,554,767
Information Pertaining to Directors
of MuniAssets and High Income Municipal
<R>
Shares Beneficially Owned on the Record Date
Fund
Glenn
*
Grills
Mintz
Salomon
Seiden
Swensrud
MuniAssets
None
None
None
None
None
None
</R>
*
Interested
person, as defined in the Investment Company Act, of MuniAssets and High Income
Municipal.
Set forth in the table below
is information regarding board of directors and audit committee meetings
held and the aggregate fees and expenses paid by each Fund to non-affiliated
Directors during that Funds most recently completed fiscal year.
Fund
Held*
($)
Fee ($)**
Held*
($)***
Fee ($)**
Fees and
Expenses ($)
MuniAssets
High Income Municipal
*
Includes meetings held via teleconferencing equipment.
**
The fee is payable for each meeting attended
in person. A fee is not paid for telephonic meetings.<R>
***
With respect to High Income Municipal, the Co-Chairmen
of the Audit Committee each receive an additional annual fee of $500.</R>
I-1
Set forth in the table below
is information regarding compensation paid by each Fund to the non-affiliated
Directors for that Funds most recently completed fiscal year. Each
non-affiliated Director of a Fund is a member of the Audit Committee of
the Fund.
Compensation from MuniAssets and High Income
Municipal($)*
Fund
Grills
Mintz
Salomon
Seiden
Swensrud
MuniAssets
$8,000
$8,000
$8,000
$8,000
$8,000
Forbes
Montgomery
Reilly
Ryan
Suddarth**
West
Zinbarg**
High Income Municipal
$5,900
$5,400
$5,900
$5,400
$5,400
*
No
pension or retirement benefits are accrued as part of Fund expenses.
**
Messrs.
Suddarth and Zinbarg were elected Directors of High Income Municipal on July
10, 2000.
Set
forth in the table below is information regarding the aggregate compensation
paid by all registered investment companies advised by FAM and its affiliate,
MLIM (collectively, FAM/MLIM Advised Funds), including MuniAssets and High
Income Municipal, to the non-affiliated Directors for the year ended December
31, 2000.
Name of Director
FAM/MLIM Advised
Funds Paid to Directors($)(1)
MuniAssets
Joe Grills
Walter Mintz
Robert S. Salomon, Jr.
Melvin R. Seiden
Stephen B. Swensrud
High Income Municipal
Ronald W. Forbes
Cynthia A. Montgomery
Charles C. Reilly
Kevin A. Ryan
Roscoe S. Suddarth(2)
Richard R. West
Edward D. Zinbarg(2)
(1)
The Directors
serve on the boards of FAM/MLIM-advised funds as follows: Mr. Forbes (51
registered investment companies consisting of 58 portfolios); Mr. Grills
(30 registered investment companies consisting of 46 portfolios); Mr. Mintz
(16 registered investment companies consisting of 36 portfolios); Ms. Montgomery
(51 registered investment companies consisting of 58 portfolios); Mr. Reilly
(51 registered investment companies consisting of 58 portfolios); Mr. Ryan
(51 registered investment companies consisting of 58 portfolios); Mr. Salomon
(16 registered investment companies consisting of 36 portfolios); Mr. Seiden
(16 registered investment companies consisting of 36 portfolios); Mr. Suddarth
(51 registered investment companies consisting of 58 portfolios); Mr. Swensrud
(43 registered investment companies consisting of 93 portfolios) Mr. West
(66 registered investment companies consisting of 72 portfolios) and Mr.
Zinbarg (51 registered investment companies consisting of 58 portfolios).
(2)
Messrs.
Suddarth and Zinbarg were elected Directors of High Income Municipal on July
10, 2000.
I-2
<R>
Information Pertaining to Directors of MuniAssets and
High Income Municipal*
Name, Address and Biography
Municipal
Director Since
Director
Since
Terry K. Glenn
Ronald W. Forbes
Walter Mintz
1114 Avenue of the Americas,
New York, New York 10036. Special Limited Partner of Cumberland Associates
(investment partnership) since 1982.
Cynthia A. Montgomery
Charles C. Reilly
Kevin A. Ryan
*
Biographical information pertaining to the Director
nominees, Joe Grills and Robert S. Salomon, Jr., appears on page 38.</R>
I-3
Name, Address and Biography
Municipal
Director Since
Director
Since
Melvin R. Seiden
780 Third Avenue, Suite 2502,
New York, New York 10017. Director of Silbanc Properties, Ltd. (real estate,
investment and consulting) since 1987; Chairman and President of Seiden
& de Cuevas, Inc. (private investment firm) from 1964 to 1987.
I-4
Information Pertaining to Officers
of MuniAssets and High Income Municipal
Set
forth in the table below is information about the officers of MuniAssets and
High Income Municipal.
<R>
Name and Biography
Terry K. Glenn
President*
Chairman (Americas Region) since 2001, and
Executive Vice President of MLIM and its affiliate, FAM (which terms as
used herein include their corporate predecessors) since 1983; President,
Merrill Lynch Mutual Funds since 1999; President of FAMD since 1986 and
Director thereof since 1991; Executive Vice President and Director of Princeton
Services since 1993; President of Princeton Administrators, L.P. since 1988;
Director of FDS since 1985.
Vincent R Giordano
57
Senior Vice
Managing Director of MLIM since 2000 and Senior
Vice President thereof from 1984 to 2000; Senior Vice President of Princeton
Services since 1993.
President
Kenneth A. Jacob
50
Vice President
First Vice President of MLIM since 1997 and
Vice President thereof from 1984 to 1997; Vice President of FAM since 1984.
Theodore R. Jaeckel, Jr.
42
Vice President
Director (Municipal Tax-Exempt Fund Management)
of MLIM since 1997; Vice President of MLIM from 1991 to 1997.
and Portfolio
Manager
Donald C. Burke
41
Vice President
1993
1994
First Vice President of MLIM and
FAM since 1997 and Treasurer thereof since 1999; Senior Vice President and
Treasurer of Princeton Services since 1999; Vice President of FAMD
since 1999; Vice President of MLIM and FAM from 1990 to 1997; Director of
Taxation of MLIM since 1990.
and Treasurer
Bradley J. Lucido
35
Secretary
Vice President of MLIM since 1999; attorney
with MLIM since 1995.
Alice A. Pellegrino
41
Secretary
Vice President of MLIM since 1999; attorney
with MLIM since 1997; Associate with Kirkpatrick & Lockhart
LLP
from 1992 to 1997.
*
Prior
to being elected President of MuniAssets and High Income Municipal in 1999, Mr.
Glenn served as Executive Vice President of both Funds.
I-5
APPENDIX II
AGREEMENT AND PLAN OF
REORGANIZATION
<R> THIS AGREEMENT AND
PLAN OF REORGANIZATION (this Agreement) is made as of the 7th
day of September, 2001, by and between Merrill Lynch High Income Municipal
Bond Fund, Inc., a Maryland corporation (High Income Municipal),
and MuniAssets Fund, Inc., a Maryland corporation (MuniAssets).
MuniAssets and High Income Municipal are sometimes referred to herein collectively
as the Funds and individually as a Fund, as the
context requires.</R>
PLAN OF REORGANIZATION
The
reorganization will constitute the following:
(1) the
acquisition by MuniAssets of substantially all of the assets, and the
assumption by MuniAssets of substantially all of the liabilities of High Income
Municipal in return solely for an equal aggregate value of newly issued full
shares of common stock, with a par value of $0.10 per share, of MuniAssets
(MuniAssets Common Stock), and
(2) the
subsequent distribution by High Income Municipal to High Income Municipal
stockholders of all of the full shares of MuniAssets Common Stock received by
High Income Municipal in return for High Income Municipal stockholders shares
of common stock, with a par value of $0.10 per share, including shares of
common stock of High Income Municipal representing the Dividend Reinvestment
Plan (DRIP) shares held in the book deposit accounts of the holders of common
stock of High Income Municipal (High Income Municipal Common Stock)( plus
cash in lieu of fractional shares);
all upon and subject to the
terms hereinafter set forth (collectively, the Reorganization).
In the
course of the Reorganization, each holder of High Income Municipal Common Stock
will be entitled to receive a number of full shares of MuniAssets Common Stock
and cash in lieu of fractional shares equal to the aggregate net asset value of
High Income Municipal Common Stock owned by such stockholder on the Closing
Date (as defined in Section 7(a) below).
It is
intended that the Reorganization described in this Agreement shall be a
reorganization within the meaning of Section 368(a)(1)(C) of the Internal
Revenue Code of 1986, as amended (the Code), and any successor provision.
Prior to
the Closing Date, High Income Municipal shall declare a dividend or dividends
which, together with all such previous dividends, shall have the effect of
distributing to its stockholders all of its net investment company taxable
income to and including the Closing Date, if any (computed without regard to
any deduction for dividends paid), and all of its net capital gain, if any,
realized to and including the Closing Date.
As
promptly as practicable after the consummation of the Reorganization, High
Income Municipal shall be dissolved in accordance with the laws of the State of
Maryland and will terminate its registration under the Investment Company Act
of 1940, as amended (the 1940 Act).
AGREEMENT
In order
to consummate the Reorganization and in consideration of the promises and the
covenants and agreements hereinafter set forth, and intending to be legally
bound, each Fund hereby agrees as follows:
1.
Representations
and Warranties of MuniAssets.
MuniAssets represents and warrants to, and agrees
with, High Income Municipal that:
(a)
MuniAssets is a corporation duly organized, validly existing and in good
standing in conformity with the laws of the State of Maryland, and has the
power to own all of its assets and to carry out this Agreement. MuniAssets has
all necessary Federal, state and local authorizations to carry on its business
as it is now being conducted and to carry out this Agreement.
(b) MuniAssets is
duly registered under the 1940 Act as a non-diversified, closed-end management
investment company (File No. 811-07642), and such registration has not been
revoked or rescinded and is in full force and effect. MuniAssets has elected
and qualified since inception for the special tax treatment
II-1
afforded regulated investment companies (RICs)
under Sections 851-855 of the Code and intends to continue to so qualify
until consummation of the Reorganization and thereafter.
(c) High Income Municipal
has been furnished with MuniAssets Annual Report to Stockholders for
the fiscal year ended May 31, 2001, and the audited financial statements
appearing therein, having been audited by Deloitte & Touche
LLP
,
independent public accountants, fairly present the financial position of
MuniAssets as of the respective dates indicated, in conformity with accounting principles generally
accepted in the United States of America applied on a consistent basis.
(d) An unaudited
statement of assets, liabilities and capital of MuniAssets and an unaudited
schedule of investments of MuniAssets, each as of the Valuation Time (as
defined in Section 3(d) of this Agreement), will be furnished to High Income
Municipal, at or prior to the Closing Date for the purpose of determining
the number of shares of MuniAssets Common Stock to be issued pursuant to
Section 4 of this Agreement; each will fairly present the financial position
of MuniAssets as of the Valuation Time in conformity with accounting principles
generally accepted in the United States of America applied on a consistent
basis.
(e)
MuniAssets has full power and authority to enter into and perform its
obligations under this Agreement. The execution, delivery and performance of
this Agreement have been duly authorized by all necessary action of its Board
of Directors, and this Agreement constitutes a valid and binding contract
enforceable in accordance with its terms, subject to the effects of bankruptcy,
insolvency, moratorium, fraudulent conveyance and similar laws relating to or
affecting creditors rights generally and court decisions with respect thereto.
(f)
There are no material legal, administrative or other proceedings pending or, to
the knowledge of MuniAssets, threatened against it which assert liability on
the part of MuniAssets or which materially affect its financial condition or
its ability to consummate the Reorganization. MuniAssets is not charged with
or, to the best of its knowledge, threatened with any violation or
investigation of any possible violation of any provisions of any Federal, state
or local law or regulation or administrative ruling relating to any aspect of
its business.
(g)
MuniAssets is not obligated under any provision of its Articles of
Incorporation, as amended, or its by-laws, as amended, or a party to any
contract or other commitment or obligation, and is not subject to any order or
decree which would be violated by its execution of or performance under this
Agreement, except insofar as the Funds have mutually agreed to amend such
contract or other commitment or obligation to cure any potential violation as a
condition precedent to the Reorganization.
(h) There are no
material contracts outstanding to which MuniAssets is a party that have
not been disclosed in the N-14 Registration Statement (as defined in subsection
(l) below) or will not otherwise be disclosed to High Income Municipal prior
to the Valuation Time.
(i) MuniAssets has
no known liabilities of a material amount, contingent or otherwise, other
than those shown on its statements of assets, liabilities and capital referred
to above, those incurred in the ordinary course of its business as an investment
company since May 31, 2001, and those incurred in connection with the Reorganization.
As of the Valuation Time, MuniAssets will advise High Income Municipal in
writing of all known liabilities, contingent or otherwise, whether or not
incurred in the ordinary course of business, existing or accrued as of such
time.
(j)
No consent, approval, authorization or order of any court or governmental
authority is required for the consummation by MuniAssets of the Reorganization,
except such as may be required under the Securities Act of 1933, as amended
(the 1933 Act), the Securities Exchange Act of 1934, as amended (the 1934
Act) and the 1940 Act or state securities laws (which term as used herein
shall include the laws of the District of Columbia and Puerto Rico).
(k) The registration
statement filed by MuniAssets on Form N-14 which includes the joint proxy
statement of the Funds with respect to the transactions contemplated herein
and the prospectus of MuniAssets relating to the MuniAssets Common Stock
to be issued pursuant to this Agreement, (the Joint Proxy Statement
and Prospectus), and any supplement or amendment thereto or to the
documents therein (as amended or supplemented, the N-14 Registration
Statement), on its effective date, at the time of the stockholders
meetings referred to in Section 6(a) of this Agreement and at the Closing
Date, insofar as it relates to MuniAssets (i) complied or will comply in
all material respects with the provisions of the 1933 Act, the 1934 Act
and the 1940 Act and the rules and regulations thereunder and (ii) did not
or will not
II-2
contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading; and the Joint Proxy Statement
and Prospectus included therein did not or will not contain any untrue statement
of a material fact or omit to state any material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading;
provided, however
, that the representations
and warranties in this subsection only shall apply to statements in or omissions
from the N-14 Registration Statement made in reliance upon and in conformity
with information furnished by MuniAssets for use in the N-14 Registration
Statement as provided in Section 6(e) of this Agreement.
(l)
MuniAssets is authorized to issue 200,000,000 shares of capital stock, all of
which have been designated as common stock, par value $0.10 per share; each
outstanding share of which is fully paid and nonassessable and has full voting
rights.
(m)
The shares of MuniAssets Common Stock to be issued to High Income Municipal
pursuant to this Agreement will have been duly authorized and, when issued and
delivered pursuant to this Agreement, will be legally and validly issued and
will be fully paid and nonassessable and will have full voting rights, and no
stockholder of MuniAssets will have any preemptive right of subscription or
purchase in respect thereof.
(n)
At or prior to the Closing Date, the MuniAssets Common Stock to be transferred
to High Income Municipal for distribution to the stockholders of High Income
Municipal on the Closing Date will be duly qualified for offering to the public
in all states of the United States in which the sale of shares of High Income
Municipal presently are qualified, and there will be a sufficient number of
such shares registered under the 1933 Act and, as may be necessary, with each
pertinent state securities commission to permit the transfers contemplated by
this Agreement to be consummated.
(o) At or prior to
the Closing Date, MuniAssets will have obtained any and all regulatory,
Director and stockholder approvals necessary to issue the MuniAssets Common
Stock to High Income Municipal.
2.
Representations
and Warranties of High Income Municipal.
High Income Municipal represents and warrants
to, and agrees with, MuniAssets that:
(a) High Income Municipal
is a corporation duly organized, validly existing and in good standing in
conformity with the laws of the State of Maryland, and has the power to
own all of its assets and to carry out this Agreement. High Income Municipal
has all necessary Federal, state and local authorizations to carry on its
business as it is now being conducted and to carry out this Agreement.
(b)
High Income Municipal is duly registered under the 1940 Act as a continuously
offered, non-diversified, closed-end management investment company (File No.
811-06156), and such registration has not been revoked or rescinded and is in
full force and effect. High Income Municipal has elected and qualified since
inception for the special tax treatment afforded RICs under Sections 851-855 of
the Code and intends to continue to so qualify through its taxable year ending
upon liquidation.
(c)
As used in this Agreement, the term High Income Municipal Investments shall
mean (i) the investments of High Income Municipal shown on the schedule of its
investments as of the Valuation Time furnished to MuniAssets; and (ii) all
other assets owned by High Income Municipal or liabilities incurred as of the
Valuation Time.
(d)
High Income Municipal has full power and authority to enter into and perform
its obligations under this Agreement. The execution, delivery and performance
of this Agreement has been duly authorized by all necessary action of its Board
of Directors and this Agreement constitutes a valid and binding contract
enforceable in accordance with its terms, subject to the effects of bankruptcy,
insolvency, moratorium, fraudulent conveyance and similar laws relating to or
affecting creditors rights generally and court decisions with respect thereto.
(e) MuniAssets has
been furnished with High Income Municipals Annual Report to Stockholders
for the fiscal year ended August 31, 2000, and the audited financial statements
appearing therein, having been audited by Deloitte & Touche
LLP
,
independent auditors, fairly present the financial position of High Income
Municipal as of the respective dates indicated, in conformity with accounting
principles generally accepted in the United States of America applied on
a consistent basis.
II-3
<R>
(f) MuniAssets has
been furnished with High Income Municipals Semi-Annual Report to Stockholders
for the period ended February 28, 2001 and the unaudited financial statements
appearing therein, fairly present the financial position of High Income
Municipal as of the respective dates indicated, in conformity with accounting
principles generally accepted in the United States of America applied on
a consistent basis. </R>
(g) An unaudited
statement of assets, liabilities and capital of High Income Municipal and
an unaudited schedule of investments of High Income Municipal, each as of
the Valuation Time, will be furnished to MuniAssets at or prior to the Closing
Date for the purpose of determining the number of shares of MuniAssets Common
Stock to be issued to High Income Municipal pursuant to Section 4 of this
Agreement; each will fairly present the financial position of High Income
Municipal as of the Valuation Time in conformity with generally accepted
accounting principles applied on a consistent basis.
(h) There are no
material legal, administrative or other proceedings pending or, to the knowledge
of High Income Municipal, threatened against it which assert liability on
the part of High Income Municipal or which materially affect its financial
condition or its ability to consummate the Reorganization. High Income Municipal
is not charged with or, to the best of its knowledge, threatened with any
violation or investigation of any possible violation of any provisions of
any Federal, state or local law or regulation or administrative ruling relating
to any aspect of its business.
(i) There are no
material contracts outstanding to which High Income Municipal is a party
that have not been disclosed in the N-14 Registration Statement or will
not otherwise be disclosed to MuniAssets prior to the Valuation Time.
(j) High Income Municipal
is not obligated under any provision of its Articles of Incorporation, as
amended, or its by-laws, as amended, or a party to any contract or other
commitment or obligation, and is not subject to any order or decree which
would be violated by its execution of or performance under this Agreement,
except insofar as the Funds have mutually agreed to amend such contract
or other commitment or obligation to cure any potential violation as a condition
precedent to the Reorganization.
(k) High Income Municipal
has no known liabilities of a material amount, contingent or otherwise,
other than those shown on its statements of assets, liabilities and capital
referred to above, those incurred in the ordinary course of its business
as an investment company since February 28, 2001, and those incurred in
connection with the Reorganization. As of the Valuation Time, High Income
Municipal will advise MuniAssets in writing of all known liabilities, contingent
or otherwise, whether or not incurred in the ordinary course of business,
existing or accrued as of such time.
(l)
High Income Municipal has filed, or has obtained extensions to file, all
Federal, state and local tax returns which are required to be filed by it, and
has paid or has obtained extensions to pay, all Federal, state and local taxes
shown on said returns to be due and owing and all assessments received by it,
up to and including the taxable year in which the Closing Date occurs. All tax
liabilities of High Income Municipal have been adequately provided for on its
books, and no tax deficiency or liability of High Income Municipal has been
asserted and no question with respect thereto has been raised by the Internal
Revenue Service or by any state or local tax authority for taxes in excess of
those already paid, up to and including the taxable year in which the Closing
Date occurs.
(m)
At both the Valuation Time and the Closing Date, High Income Municipal will
have full right, power and authority to sell, assign, transfer and deliver the
High Income Municipal Investments. At the Closing Date, subject only to the
obligation to deliver the High Income Municipal Investments as contemplated by
this Agreement, High Income Municipal will have good and marketable title to
all of the High Income Municipal Investments, and MuniAssets will acquire all
of the High Income Municipal Investments free and clear of any encumbrances,
liens or security interests and without any restrictions upon the transfer
thereof (except those imposed by the Federal or state securities laws and those
imperfections of title or encumbrances as do not materially detract from the
value or use of the High Income Municipal Investments or materially affect
title thereto).
(n) No consent, approval,
authorization or order of any court or governmental authority is required
for the consummation by High Income Municipal of the Reorganization, except
such as may be required under the 1933 Act, the 1934 Act, the 1940 Act or
state securities laws.
(o) The N-14 Registration
Statement, on its effective date, at the time of the stockholders
meetings referred to in Section 6(a) of this Agreement and on the Closing
Date, insofar as it relates to High Income Municipal (i) complied or will
comply in all material respects with the provisions of the 1933 Act, the
1934
II-4
Act and the 1940 Act and the rules and regulations
thereunder, and (ii) did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; and
the Joint Proxy Statement and Prospectus included therein did not or will
not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided,
however
, that the representations and warranties in this subsection
shall apply only to statements in or omissions from the N-14 Registration
Statement made in reliance upon and in conformity with information furnished
by High Income Municipal for use in the N-14 Registration Statement as provided
in Section 6(e) of this Agreement.
(p) High Income Municipal
is authorized to issue 200,000,000 shares of capital stock, all of which
have been designated as common stock, par value $.10 per share; each outstanding
share of which is fully paid and nonassessable and has full voting rights.
(q) All of the issued
and outstanding shares of High Income Municipal Common Stock were offered
for sale and sold in conformity with all applicable Federal and state securities
laws.
(r) The books and
records of High Income Municipal made available to MuniAssets and/or its
counsel are substantially true and correct and contain no material misstatements
or omissions with respect to the operations of High Income Municipal.
(s) High Income Municipal
will not sell or otherwise dispose of any of the shares of MuniAssets Common
Stock to be received in the Reorganization, except in distribution to the
stockholders of High Income Municipal, as provided in Section 3 of this
Agreement.
3.
The Reorganization.
(a)
Subject to receiving the requisite approvals of the stockholders of each Fund,
and to the other terms and conditions contained herein, High Income Municipal
agrees to convey, transfer and deliver to MuniAssets and MuniAssets agrees to
acquire from High Income Municipal on the Closing Date, substantially all of
the High Income Municipal Investments (including interest accrued as of the
Valuation Time on debt instruments) and assume substantially all of the
liabilities of High Income Municipal in return solely for that number of full
shares of MuniAssets Common Stock and cash in lieu of fractional shares
provided in Section 4 of this Agreement.
Pursuant to this
Agreement, as soon as practicable after the Closing Date High Income Municipal
will distribute all full shares of MuniAssets Common Stock received by it
to its stockholders (plus cash in lieu of fractional shares) in return for
their shares of High Income Municipal Common Stock. Such distributions shall
be accomplished by the opening of stockholder accounts on the stock ledger
records of MuniAssets in the amounts due the stockholders of High Income
Municipal based on their holdings in High Income Municipal as of the Valuation
Time.
(b)
Prior to the Closing Date, High Income Municipal shall declare a dividend or
dividends which, together with all such previous dividends, shall have the
effect of distributing to its stockholders all of its net investment company
taxable income to and including the Closing Date, if any (computed without
regard to any deduction for dividends paid), and all of its net capital gain,
if any, realized to and including the Closing Date.
(c) High Income Municipal
will pay or cause to be paid to MuniAssets any interest High Income Municipal
receives on or after the Closing Date with respect to any of the High Income
Municipal Investments transferred to MuniAssets hereunder.<R>
(d) The Valuation
Time shall be 4:00 p.m., Eastern time, on November 9, 2001, or such earlier
or later day and time as may be mutually agreed upon in writing (the Valuation
Time).</R>
(e) Recourse for
liabilities assumed from High Income Municipal by MuniAssets in the Reorganization
will be limited to the net assets of High Income Municipal acquired by MuniAssets.
The known liabilities of High Income Municipal, as of the Valuation Time,
shall be confirmed in writing to MuniAssets pursuant to Section 2(k) of
this Agreement.
(f) The Funds will
jointly file Articles of Transfer with the State Department of Assessments
and Taxation of Maryland (the Maryland Department) and any other
such instrument as may be required by the State of Maryland to effect the
transfer of the High Income Municipal Investments.
II-5
(g) High Income Municipal
will be dissolved following the Closing Date by filing Articles of Dissolution
with the Maryland Department.
(h) As promptly as
practicable after the liquidation of High Income Municipal pursuant to the
Reorganization, High Income Municipal shall terminate its registration under
the 1940 Act.
4.
Issuance and Valuation
of MuniAssets Common Stock.
Full shares of MuniAssets Common
Stock of an aggregate net asset value equal (to the nearest one ten thousandth
of one cent) to the value of the assets of High Income Municipal acquired
in the Reorganization determined as hereinafter provided, reduced by the
amount of liabilities of High Income Municipal assumed by MuniAssets in
the Reorganization, shall be issued by MuniAssets to High Income Municipal
in return for such assets of High Income Municipal.
The net asset value of each
Fund shall be determined as of the Valuation Time in accordance with the
procedures described in the N-14 Registration Statement and no formula will
be used to adjust the net asset value so determined of either Fund to take
into account differences in realized and unrealized gains and losses. Values
in all cases shall be determined as of the Valuation Time. The value of
the High Income Municipal Investments to be transferred to MuniAssets shall
be determined by MuniAssets pursuant to the procedures utilized by MuniAssets
in valuing its own assets and determining its own liabilities for purposes
of the Reorganization. Such valuation and determination shall be made by
MuniAssets in cooperation with High Income Municipal and shall be confirmed
in writing by MuniAssets to High Income Municipal. The net asset value per
share of the MuniAssets Common Stock shall be determined in accordance with
such procedures and MuniAssets shall certify the computations involved.
For purposes of determining the net asset value of a share of Common Stock
of each Fund, the value of the securities held by the Fund plus any cash
or other assets (including interest accrued but not yet received) minus
all liabilities (including accrued expenses) is divided by the total number
of shares of Common Stock of that Fund outstanding at such time.
MuniAssets
shall issue to High Income Municipal separate certificates for the MuniAssets
Common Stock, registered in the name of High Income Municipal. High Income
Municipal then shall distribute the MuniAssets Common Stock to the holders of
High Income Municipal Common Stock by redelivering the certificates evidencing
ownership of the MuniAssets Common Stock to The Bank of New York (BONY), as
the transfer agent and registrar for the MuniAssets Common Stock, for
distribution to the holders of High Income Municipal Common Stock on the basis
of such holders proportionate interest in the aggregate net asset value of
High Income Municipal Common Stock. With respect to any High Income Municipal
stockholder holding certificates evidencing ownership of High Income Municipal
Common Stock as of the Closing Date, and subject to MuniAssets being informed
thereof in writing by High Income Municipal, MuniAssets will not permit such
stockholder to receive new certificates evidencing ownership of the MuniAssets
Common Stock, exchange MuniAssets Common Stock credited to such stockholders
account for shares of other investment companies managed by Fund Asset
Management, L.P. (FAM) or any of its affiliates, or pledge or redeem such
MuniAssets Common Stock, in any case, until notified by High Income Municipal
or its agent that such stockholder has surrendered his or her outstanding
certificates evidencing ownership of High Income Municipal Common Stock or, in
the event of lost certificates, posted adequate bond. High Income Municipal, at
its own expense, will request its stockholders to surrender their outstanding
certificates evidencing ownership of High Income Municipal Common Stock or post
adequate bond therefor.
Dividends payable to holders
of record of shares of MuniAssets Common Stock, as of any date after the
Closing Date and prior to the receipt of certificates in connection with
the Reorganization by any stockholder of High Income Municipal, shall be
payable to such stockholder without interest; however, such dividends shall
not be paid unless and until such stockholder surrenders the stock certificates
representing shares of High Income Municipal Common Stock in return for
shares of MuniAssets Common Stock.
No fractional shares of MuniAssets
Common Stock will be issued to holders of High Income Municipal Common Stock.
In lieu thereof, MuniAssets transfer agent, BONY, will aggregate all
fractional shares of MuniAssets Common Stock and sell the resulting full
shares on the New York Stock Exchange at the current market price for shares
of MuniAssets Common Stock for the account of all holders of fractional
interests, and each such holder will receive such holders
pro rata
share of the proceeds of such sale upon surrender of such holders
certificates representing High Income Municipal Common Stock.
II-6
5.
Payment of Expenses.
<R>The expenses of the
Reorganization that are directly attributable to High Income Municipal and
the conduct of its business will be deducted from the assets of High Income
Municipal as of the Valuation Time. These expenses are expected to include
transfer agent fees, the expenses incurred in preparing, printing and mailing
the proxy materials to be utilized in connection with the meeting of the
stockholders of High Income Municipal to consider the Reorganization, the
expenses related to the solicitation of proxies to be voted at that meeting
and a portion of the expenses incurred in printing the N-14 Registration
Statement. The expenses of the Reorganization that are directly attributable
to MuniAssets and the conduct of its business will be deducted from the
assets of MuniAssets as of the Valuation Time. The expenses attributable
to MuniAssets are expected to include the costs, if any of transfer agent
fees, the costs of printing stock certificates, the expenses incurred in
preparing, printing and mailing the proxy materials to be utilized in connection
with the meeting of the stockholders of MuniAssets to consider the Reorganization,
the expenses related to the solicitation of proxies to be voted at that
meeting and a portion of the expenses incurred in printing the N-14 Registration
Statement. Certain other expenses of the Reorganization, including expenses
in connection with obtaining an opinion of counsel as to certain tax matters,
the preparation of this Agreement, legal fees, stock exchange fees and audit
fees, will be borne equally by the Funds.</R>
6.
Covenants of the
Funds.
(a)
Each Fund agrees to hold a meeting of its stockholders, special or otherwise,
as soon as is practicable after the effective date of the N-14 Registration
Statement, for the purpose of considering the Reorganization as described in
this Agreement.
(b)
Each Fund covenants to operate its business as presently conducted between the
date hereof and the Closing Date.
(c)
High Income Municipal agrees that following the consummation of the
Reorganization, it will dissolve in accordance with the laws of the State of
Maryland and any other applicable law, it will not make any distributions of
any shares of MuniAssets Common Stock other than to its respective stockholders
and without first paying or adequately providing for the payment of all of its
respective liabilities not assumed by MuniAssets, if any, and on and after the
Closing Date it shall not conduct any business except in connection with its
dissolution.
(d)
High Income Municipal undertakes that if the Reorganization is consummated, it
will file an application pursuant to Section 8(f) of the 1940 Act for an order
declaring that High Income Municipal has ceased to be a registered investment
company.
(e) MuniAssets will
file the N-14 Registration Statement with the Securities and Exchange Commission
(the Commission) and will use its best efforts to provide that
the N-14 Registration Statement becomes effective as promptly as practicable.
Each Fund agrees to cooperate fully with the other, and each will furnish
to the other the information relating to itself to be set forth in the N-14
Registration Statement as required by the 1933 Act, the 1934 Act, the 1940
Act, and the rules and regulations thereunder and the state securities laws.
(f) MuniAssets has
no plan or intention to sell or otherwise dispose of the High Income Municipal
Investments, except for dispositions made in the ordinary course of business.
(g) Each Fund agrees
that by the Closing Date all of its Federal and other tax returns and reports
required to be filed on or before such date shall have been filed and all
taxes shown as due on said returns either have been paid or adequate liability
reserves have been provided for the payment of such taxes. In connection
with this covenant, the Funds agree to cooperate with each other in filing
any tax return, amended return or claim for refund, determining a liability
for taxes or a right to a refund of taxes or participating in or conducting
any audit or other proceeding in respect of taxes. MuniAssets agrees to
retain for a period of ten (10) years following the Closing Date all returns,
schedules and work papers and all material records or other documents relating
to tax matters of High Income Municipal for such Funds taxable period
first ending after the Closing Date and for all prior taxable periods. Any
information obtained under this subsection shall be kept confidential except
as otherwise may be necessary in connection with the filing of returns or
claims for refund or in conducting an audit or other proceeding. After the
Closing Date, High Income Municipal shall prepare, or cause its agents to
prepare, any Federal, state or local tax returns, including any Forms 1099,
required to be filed by such fund with respect to its final taxable year
ending with its complete liquidation and for any prior periods or taxable
years and further shall cause such tax returns
II-7
and Forms 1099 to be duly
filed with the appropriate taxing authorities. Notwithstanding the aforementioned
provisions of this subsection, any expenses incurred by High Income Municipal
(other than for payment of taxes) in connection with the preparation and
filing of said tax returns and Forms 1099 after the Closing Date shall be
borne by such Fund to the extent such expenses have been accrued by such
Fund in the ordinary course without regard to the Reorganization; any excess
expenses shall be borne by FAM at the time such tax returns and Forms 1099
are prepared.
(h) Each Fund agrees
to mail to its respective stockholders of record entitled to vote at the
meeting of its stockholders at which action is to be considered regarding
this Agreement, in sufficient time to comply with requirements as to notice
thereof, the Joint Proxy Statement and Prospectus which complies in all
material respects with the applicable provisions of Section 14(a) of the
1934 Act and Section 20(a) of the 1940 Act, and the rules and regulations,
respectively, thereunder.
(i)
Following the consummation of the Reorganization, MuniAssets will stay in
existence and continue its business as a non-diversified, closed-end management
investment company registered under the 1940 Act.
7.
Closing Date.
(a) Delivery of the
assets of High Income Municipal to be transferred and the shares of MuniAssets
Common Stock to be issued as provided in this Agreement, shall be made at
the offices of Sidley Austin Brown & Wood
LLP
,
One World Trade Center, New York, New York 10048, at 10:00 a.m. on the next
full business day following the Valuation Time, or at such other place,
time and date agreed to by the Funds, the date and time upon which such
delivery is to take place being referred to herein as the Closing
Date. To the extent that any High Income Municipal Investments, for
any reason, are not transferable on the Closing Date, High Income Municipal
shall cause such High Income Municipal Investments to be transferred to
MuniAssetss account with BONY at the earliest practicable date thereafter.
(b) High Income Municipal
will deliver to MuniAssets on the Closing Date confirmations or other adequate
evidence as to the tax basis of each of its respective High Income Municipal
Investments delivered to MuniAssets hereunder, certified by Deloitte & Touche
LLP
.
(c) As soon as practicable
after the close of business on the Closing Date, High Income Municipal shall
deliver to MuniAssets a list of the names and addresses of all of the stockholders
of record of High Income Municipal on the Closing Date and the number of
shares of High Income Municipal Common Stock owned by each such stockholder,
certified to the best of their knowledge and belief by the transfer agent
for High Income Municipal or by its President.
8.
Conditions of High
Income Municipal.
The obligations of High Income Municipal hereunder
shall be subject to the following conditions:
(a) That this Agreement
shall have been adopted, and the Reorganization shall have been approved,
by the affirmative vote of (i) the Board of Directors of MuniAssets, and
(ii) at least two-thirds of the members of the Board of Directors of High
Income Municipal, and by the affirmative vote, (A) with respect to High
Income Municipal, of the holders of a majority of the outstanding shares
of capital stock of High Income Municipal entitled to vote thereon, and
(B) with respect to MuniAssets, of the holders of a majority of the outstanding
shares of capital stock of MuniAssets entitled to vote thereon, and further
that MuniAssets shall have delivered to High Income Municipal a copy of
the resolution approving this Agreement adopted by MuniAssets Board
of Directors, and a certificate setting forth the vote of MuniAssets
stockholders obtained at the meeting of its stockholders, each certified
by the Secretary of MuniAssets.
(b) That High Income
Municipal shall have received from MuniAssets a statement of assets, liabilities
and capital, with values determined as provided in Section 4 of this Agreement,
together with a schedule of such Funds investments, all as of the
Valuation Time, certified on MuniAssets behalf by its President (or
any Vice President) and its Treasurer, and a certificate signed by MuniAssets
President (or any Vice President) and its Treasurer, dated as of the Closing
Date, certifying that as of the Valuation Time and as of the Closing Date
there has been no material adverse change in the financial position of MuniAssets
since the date of such Funds most recent Annual or Semi-Annual Report,
as applicable, other than changes in its portfolio securities since that
date or changes in the market value of its portfolio securities.
II-8
(c) That MuniAssets
shall have furnished to High Income Municipal a certificate signed by MuniAssets
President (or any Vice President) and its Treasurer, dated as of the Closing
Date, certifying that, as of the Valuation Time and as of the Closing Date
all representations and warranties of MuniAssets made in this Agreement
are true and correct in all material respects with the same effect as if
made at and as of such dates, and that MuniAssets has complied with all
of the agreements and satisfied all of the conditions on its part to be
performed or satisfied at or prior to each of such dates.
(d) That there shall
not be any material litigation pending with respect to the matters contemplated
by this Agreement.
(e) That High Income
Municipal shall have received an opinion of Sidley Austin Brown & Wood
LLP
, as Maryland counsel to MuniAssets, as to Maryland
law in form satisfactory to High Income Municipal and dated the Closing
Date, to the effect that (i) MuniAssets is a corporation duly organized,
validly existing and in good standing in conformity with the laws of the
State of Maryland; (ii) the shares of MuniAssets to be issued pursuant to
this Agreement are duly authorized and, upon delivery, will be validly issued
and fully paid and nonassessable by MuniAssets, and no stockholder of MuniAssets
has any preemptive right to subscription or purchase in respect thereof
(pursuant to the Articles of Incorporation or the by-laws of MuniAssets
or, to the best of such counsels knowledge, otherwise); (iii) this
Agreement has been duly authorized, executed and delivered by MuniAssets;
(iv) the execution and delivery of this Agreement by MuniAssets does not,
and the consummation of the Reorganization will not, violate any provisions
of Maryland law or the Articles of Incorporation, as amended, or the by-laws,
as amended, of MuniAssets; (v) to the best of such counsels knowledge,
no consent, approval, authorization or order of any Maryland court or governmental
authority is required for the consummation by MuniAssets of the Reorganization,
except such as have been obtained under Maryland law; and (vi) such opinion
is solely for the benefit of High Income Municipal and its Directors and
Officers. In giving the opinion set forth above, Sidley Austin Brown &
Wood
LLP
may state that it is relying on certificates
of officers of MuniAssets with regard to matters of fact and certain certificates
and written statements of government officials with respect to the organization
and good standing of MuniAssets.
(f) That High Income
Municipal shall have received an opinion of Clifford Chance Rogers &
Wells
LLP
, as counsel to MuniAssets, in form satisfactory
to High Income Municipal and dated the Closing Date, to the effect that
(i) this Agreement represents a valid and binding contract, enforceable
in accordance with its terms, subject to the effects of bankruptcy, insolvency,
moratorium, fraudulent conveyance and similar laws relating to or affecting
creditors rights generally and court decisions with respect thereto;
provided, such counsel shall express no opinion with respect to the application
of equitable principles in any proceeding, whether at law or in equity,
and provided further, that such counsel shall express no opinion with respect
to the indemnification and contribution provisions set forth in this Agreement;
(ii) the execution and delivery of this Agreement by MuniAssets does not,
and the consummation of the Reorganization will not, violate any material
provisions of any agreement (known to such counsel to which MuniAssets is
a party or by which MuniAssets is bound), except insofar as the parties
have agreed to amend such provisions as a condition precedent to the Reorganization;
(iii) to the best of such counsels knowledge, no consent, approval,
authorization or order of any United States federal court or governmental
authority is required for the consummation by MuniAssets of the Reorganization,
except such as have been obtained under the 1933 Act, the 1934 Act and the
1940 Act and the published rules and regulations of the Commission thereunder
and such as may be required under state securities laws; (iv) the N-14 Registration
Statement has become effective under the 1933 Act, no stop order suspending
the effectiveness of the N-14 Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or contemplated
under the 1933 Act, and the N-14 Registration Statement, and each amendment
or supplement thereto, as of their respective effective dates, appear on
their face to be appropriately responsive in all material respects to the
requirements of the 1933 Act, the 1934 Act and the 1940 Act and the published
rules and regulations of the Commission thereunder; (v) the descriptions
in the N-14 Registration Statement of statutes, legal and governmental proceedings
and contracts and other documents are accurate and fairly present the information
required to be shown; (vi) such counsel does not know of any statutes, legal
or governmental proceedings or contracts or other documents related to the
Reorganization of a character required to be described in the N-14 Registration
Statement which are not described therein or, if required to be filed, filed
as required; (vii) MuniAssets, to the knowledge of such counsel, is not
required to qualify to do business as a foreign corporation in any jurisdiction
except as may be required by state securities laws, and except where MuniAssets
has so qualified or the failure so to qualify would not have a material
adverse effect on
II-9
MuniAssets or its stockholders; (viii) such counsel
does not have actual knowledge of any material suit, action or legal or
administrative proceeding pending or threatened against MuniAssets, the
unfavorable outcome of which would materially and adversely affect MuniAssets;
(ix) all corporate actions required to be taken by MuniAssets to authorize
this Agreement and to effect the Reorganization have been duly authorized
on the part of MuniAssets; and (x) such opinion is solely for the benefit
of High Income Municipal and its Directors and officers. Such opinion also
shall state that (A) while such counsel cannot make any representation as
to the accuracy or completeness of statements of fact in the N-14 Registration
Statement or any amendment or supplement thereto, nothing has come to their
attention that would lead them to believe that, on the respective effective
dates of the N-14 Registration Statement and any amendment or supplement
thereto, (1) the N-14 Registration Statement or any amendment or supplement
thereto contained any untrue statement of a material fact or omitted to
state any material fact relating to MuniAssets required to be stated therein
or necessary to make the statements therein not misleading; and (2) the
proxy statement and prospectus included in the N-14 Registration Statement
contained any untrue statement of a material fact or omitted to state any
material fact relating to MuniAssets necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
and (B) such counsel does not express any opinion or belief as to the financial
statements or other financial or statistical data contained or incorporated
by reference in the N-14 Registration Statement. In giving the opinion set
forth above, Clifford Chance Rogers & Wells
LLP
may state that it is relying on certificates of officers of MuniAssets with
regard to matters of fact and certain certificates and written statements
of governmental officials with respect to the good standing of MuniAssets.
(g) That High Income
Municipal shall have received an opinion of Sidley Austin Brown & Wood
LLP
to the effect that for Federal income tax purposes (i) the transfer by High
Income Municipal of substantially all of its assets to MuniAssets in exchange
solely for shares of MuniAssets Common Stock as provided in this Agreement
will constitute a reorganization within the meaning of Section 368(a)(1)(C)
of the Code, and MuniAssets and High Income Municipal will each be deemed
to be a party to a reorganization within the meaning of Section
368(b) of the Code; (ii) in accordance with Section 361(a) of the Code,
no gain or loss will be recognized to High Income Municipal as a result
of the asset transfer solely in exchange for shares of MuniAssets Common
Stock or on the distribution of MuniAssets Common Stock to High Income Municipal
stockholders under Section 361(c)(1) of the Code; (iii) under Section 1032
of the Code, no gain or loss will be recognized to MuniAssets on the receipt
of assets of High Income Municipal in exchange for MuniAssets shares; (iv)
in accordance with Section 354(a)(1) of the Code, no gain or loss will be
recognized to the stockholders of High Income Municipal on the receipt of
shares of MuniAssets Common Stock in exchange for their shares of High Income
Municipal Common Stock (except to the extent that High Income Municipal
common stockholders receive cash representing an interest in fractional
shares of MuniAssets Common Stock in the Reorganization); (v) in accordance
with Section 362(b) of the Code, the tax basis of the High Income Municipal
assets in the hands of MuniAssets will be the same as the tax basis of such
assets in the hands of High Income Municipal immediately prior to the consummation
of the Reorganization; (vi) in accordance with Section 358 of the Code,
immediately after the Reorganization, the tax basis of the shares of MuniAssets
Common Stock received by the stockholders of High Income Municipal in the
Reorganization will be equal to the tax basis of the shares of High Income
Municipal surrendered in exchange; (vii) in accordance with Section 1223
of the Code, a stockholders holding period for the shares of MuniAssets
will be determined by including the period for which such stockholder held
the shares of High Income Municipal Common Stock exchanged therefor, provided,
that such shares of High Income Municipal were held as a capital asset;
(viii) in accordance with Section 1223 of the Code, MuniAssets holding
period with respect to the High Income Municipal assets transferred will
include the period for which such assets were held by High Income Municipal;
(ix) the payment of cash to common stockholders of High Income Municipal
will be treated as though the fractional shares of MuniAssets Common Stock
were distributed as part of the Reorganization and then redeemed by MuniAssets,
with the result that such stockholders will have short-or long-term capital
gain or loss to the extent that the cash distribution differs from the stockholders
basis allocable to the MuniAssets fractional shares: and (x) the taxable
year of High Income Municipal will end on the effective date of the Reorganization,
and pursuant to Section 381(a) of the Code and regulations thereunder, MuniAssets
will succeed to and take into account, subject to limitation, certain tax
attributes of High Income Municipal, such as earnings and profits, capital
loss carryovers and method of accounting.
(h) That all proceedings
taken by MuniAssets and its counsel in connection with the Reorganization
and all documents incidental thereto shall be satisfactory in form and substance
to High Income Municipal.
II-10
(i) That the N-14
Registration Statement shall have become effective under the 1933 Act, and
no stop order suspending such effectiveness shall have been instituted or,
to the knowledge of MuniAssets, be contemplated by the Commission.
(j) That High Income
Municipal shall have received from Deloitte & Touche
LLP
a letter dated within three days prior to the effective date of the N-14
Registration Statement and a similar letter dated within five days prior
to the Closing Date, in form and substance satisfactory to them, to the
effect that (i) they are independent public accountants with respect to
MuniAssets within the meaning of the 1933 Act and the applicable published
rules and regulations thereunder; (ii) in their opinion, the financial statements
and supplementary information of MuniAssets included or incorporated by
reference in the N-14 Registration Statement and reported on by them comply
as to form in all material respects with the applicable accounting requirements
of the 1933 Act and the published rules and regulations thereunder; (iii)
on the basis of limited procedures agreed upon by High Income Municipal
and described in such letter (but not an examination in accordance with
generally accepted auditing standards) consisting of a reading of any unaudited
interim financial statements and unaudited supplementary information of
MuniAssets included in the N-14 Registration Statement, and inquiries of
certain officials of MuniAssets responsible for financial and accounting
matters, nothing came to their attention that caused them to believe that
(a) such unaudited financial statements and related unaudited supplementary
information do not comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the published rules and regulations
thereunder, (b) such unaudited financial statements are not fairly presented
in conformity with generally accepted accounting principles, applied on
a basis substantially consistent with that of the audited financial statements,
or (c) such unaudited supplementary information is not fairly stated in
all material respects in relation to the unaudited financial statements
taken as a whole; and (iv) on the basis of limited procedures agreed upon
by High Income Municipal and described in such letter (but not an examination
in accordance with generally accepted auditing standards), the information
relating to MuniAssets appearing in the N-14 Registration Statement, which
information is expressed in dollars (or percentages derived from such dollars)
(with the exception of performance comparisons, if any), if any, has been
obtained from the accounting records of MuniAssets or from schedules prepared
by officials of MuniAssets having responsibility for financial and reporting
matters and such information is in agreement with such records, schedules
or computations made therefrom.
(k)
That the Commission shall not have issued an unfavorable advisory report under
Section 25(b) of the 1940 Act, nor instituted or threatened to institute any
proceeding seeking to enjoin consummation of the Reorganization under Section
25(c) of the 1940 Act, and no other legal, administrative or other proceeding
shall be instituted or threatened which would materially affect the financial
condition of MuniAssets or would prohibit the Reorganization.
(l) That High Income
Municipal shall have received from the Commission such orders or interpretations
as Sidley Austin Brown & Wood
LLP
, as counsel to High
Income Municipal, deems reasonably necessary or desirable under the 1933
Act and the 1940 Act in connection with the Reorganization,
provided
,
that such counsel shall have requested such orders as promptly as practicable,
and all such orders shall be in full force and effect.
9.
Conditions of MuniAssets.
The obligations of MuniAssets hereunder shall
be subject to the following conditions:
(a) That this Agreement
shall have been adopted, and the Reorganization shall have been approved,
by the Board of Directors and the stockholders of each of the Funds as set
forth in Section 8(a); and that High Income Municipal shall have delivered
to MuniAssets a copy of the resolution approving this Agreement adopted
by High Income Municipals Board of Directors, and a certificate setting
forth the vote of High Income Municipals stockholders obtained at
the meeting of its stockholders, certified by the Secretary of High Income
Municipal.
(b) That High Income
Municipal shall have furnished to MuniAssets a statement of its assets,
liabilities and capital, with values determined as provided in Section 4
of this Agreement, together with a schedule of investments with their respective
dates of acquisition and tax costs, all as of the Valuation Time, certified
on such Funds behalf by its President (or any Vice President) and
its Treasurer, and a certificate signed by such Funds President (or
any Vice President) and its Treasurer, dated as of the Closing Date, certifying
that as of the Valuation Time and as of the Closing Date there has been
no material adverse change in the financial
II-11
position of High Income Municipal since the date
of such Funds most recent Annual Report or Semi-Annual Report, as
applicable, other than changes in the High Income Municipal Investments
since that date or changes in the market value of the High Income Municipal
Investments.
(c) That High Income
Municipal shall have furnished to MuniAssets a certificate signed by such
Funds President (or any Vice President) and its Treasurer, dated the
Closing Date, certifying that as of the Valuation Time and as of the Closing
Date all representations and warranties of High Income Municipal made in
this Agreement are true and correct in all material respects with the same
effect as if made at and as of such dates and High Income Municipal has
complied with all of the agreements and satisfied all of the conditions
on its part to be performed or satisfied at or prior to such dates.
(d) That High Income
Municipal shall have delivered to MuniAssets a letter from Deloitte & Touche
LLP
, dated the Closing Date, stating that such firm
has performed a limited review of the Federal, state and local income tax
returns of High Income Municipal for the period ended May 31, 2001 (which
returns originally were prepared and filed by High Income Municipal), and
that based on such limited review, nothing came to their attention which
caused them to believe that such returns did not properly reflect, in all
material respects, the Federal, state and local income taxes of High Income
Municipal for the period covered thereby; and that for the period from June
1, 2001 to and including the Closing Date and for any taxable year of High
Income Municipal ending upon the liquidation of High Income Municipal, such
firm has performed a limited review to ascertain the amount of applicable
Federal, state and local taxes, and has determined that either such amount
has been paid or reserves have been established for payment of such taxes,
this review to be based on unaudited financial data; and that based on such
limited review, nothing has come to their attention which caused them to
believe that the taxes paid or reserves set aside for payment of such taxes
were not adequate in all material respects for the satisfaction of Federal,
state and local taxes for the period from June 1, 2001 to and including
the Closing Date and for any taxable year of High Income Municipal ending
upon the liquidation of such Fund, or that such Fund would not qualify as
a regulated investment company for Federal income tax purposes for the tax
years in question.
(e) That there shall
not be any material litigation pending with respect to the matters contemplated
by this Agreement.
(f) That MuniAssets
shall have received an opinion of Sidley Austin Brown & Wood
LLP
,
as counsel to High Income Municipal, in form satisfactory to MuniAssets
and dated the Closing Date, to the effect that (i) High Income Municipal
is a corporation duly organized, validly existing and in good standing in
conformity with the laws of the State of Maryland; (ii) this Agreement has
been duly authorized, executed and delivered by High Income Municipal, and
represents a valid and binding contract, enforceable in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws pertaining to the enforcement of creditors
rights generally and court decisions with respect thereto;
provided
,
such counsel shall express no opinion with respect to the application of
equitable principles in any proceeding, whether at law or in equity, and,
provided further, that such counsel shall express no opinion with respect
to the indemnification and contribution provisions set forth in this Agreement;
(iii) the execution and delivery of this Agreement by High Income Municipal
does not, and the consummation of the Reorganization will not, violate any
material provisions of Maryland law or the Articles of Incorporation, as
amended, the by-laws, as amended, or any agreement (known to such counsel)
to which High Income Municipal is a party or by which High Income Municipal
is bound, except insofar as the parties have agreed to amend such provision
as a condition precedent to the Reorganization; (iv) High Income Municipal
has the power to sell, assign, transfer and deliver the assets transferred
by it hereunder and, upon consummation of the Reorganization in accordance
with the terms of this Agreement, High Income Municipal will have duly transferred
such assets and liabilities in accordance with this Agreement; (v) to the
best of such counsels knowledge, no consent, approval, authorization
or order of any United States federal or Maryland state court or governmental
authority is required for the consummation by High Income Municipal of the
Reorganization, except such as have been obtained under the 1933 Act, the
1934 Act and the 1940 Act and the published rules and regulations of the
Commission thereunder and such as may be required under state securities
laws; (vi) the N-14 Registration Statement has become effective under the
1933 Act, no stop order suspending the effectiveness of the N-14 Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the 1933 Act, and the N-14
Registration Statement, and each amendment or supplement thereto, as of
their respective effective dates, appear on their face to be appropriately
responsive in all material respects to the
II-12
requirements of the 1933 Act, the 1934 Act and
the 1940 Act and the published rules and regulations of the Commission thereunder;
(vii) the descriptions in the N-14 Registration Statement of statutes, legal
and governmental proceedings and contracts and other documents are accurate
and fairly present the information required to be shown; (viii) the information
in the Joint Proxy Statement and Prospectus under Comparison of the
FundsTax Rules Applicable to the Funds and their Stockholders
and Agreement and Plan of ReorganizationTax Consequences of
the Reorganization, to the extent that it constitutes matters of law,
summaries of legal matters or legal conclusions, has been reviewed by such
counsel and is correct in all material respects as of the date of the Joint
Proxy Statement and Prospectus; (ix) such counsel does not know of any statutes,
legal or governmental proceedings or contracts or other documents related
to the Reorganization of a character required to be described in the N-14
Registration Statement which are not described therein or, if required to
be filed, filed as required; (x) High Income Municipal, to the knowledge
of such counsel, is not required to qualify to do business as a foreign
corporation in any jurisdiction except as may be required by state securities
laws, and except where High Income Municipal has so qualified or the failure
so to qualify would not have a material adverse effect on High Income Municipal
or its stockholders; (xi) such counsel does not have actual knowledge of
any material suit, action or legal or administrative proceeding pending
or threatened against High Income Municipal, the unfavorable outcome of
which would materially and adversely affect High Income Municipal; (xii)
all corporate actions required to be taken by High Income Municipal to authorize
this Agreement and to effect the Reorganization have been duly authorized
on the part of High Income Municipal; and (xiii) such opinion is solely
for the benefit of MuniAssets and its Directors and officers. Such opinion
also shall state that (A) while such counsel cannot make any representation
as to the accuracy or completeness of statements of fact in the N-14 Registration
Statement or any amendment or supplement thereto, nothing has come to their
attention that would lead them to believe that, on the respective effective
dates of the N-14 Registration Statement and any amendment or supplement
thereto, (1) the N-14 Registration Statement or any amendment or supplement
thereto contained any untrue statement of a material fact or omitted to
state any material fact relating to High Income Municipal required to be
stated therein or necessary to make the statements therein not misleading;
and (2) the proxy statement and prospectus included in the N-14 Registration
Statement contained any untrue statement of a material fact or omitted to
state any material fact relating to High Income Municipal necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; and (B) such counsel does not express any opinion
or belief as to the financial statements or other financial or statistical
data contained or incorporated by reference in the N-14 Registration Statement.
In giving the opinion set forth above, Sidley Austin Brown & Wood
LLP
may state that it is relying on certificates of officers of High Income
Municipal with regard to matters of fact and certain certificates and written
statements of governmental officials with respect to the organization and
good standing of High Income Municipal.
(g) That MuniAssets
shall have received an opinion of Sidley Austin Brown & Wood
LLP
with respect to the matters specified in Section 8(g) of this Agreement.
(h) That MuniAssets
shall have received from Deloitte & Touche
LLP
a letter dated within three days prior to the effective date of the N-14
Registration Statement and a similar letter dated within five days prior
to the Closing Date, in form and substance satisfactory to MuniAssets, to
the effect that (i) they are independent public accountants with respect
to High Income Municipal within the meaning of the 1933 Act and the applicable
published rules and regulations thereunder; (ii) in their opinion, the financial
statements and supplementary information of High Income Municipal included
or incorporated by reference in the N-14 Registration Statement and reported
on by them (if applicable) comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the published
rules and regulations thereunder; (iii) on the basis of limited procedures
agreed upon by MuniAssets and described in such letter (but not an examination
in accordance with generally accepted auditing standards) consisting of
a reading of any unaudited interim financial statements and unaudited supplementary
information of High Income Municipal included in the N-14 Registration Statement,
and inquiries of certain officials of High Income Municipal responsible
for financial and accounting matters, nothing came to their attention that
caused them to believe that (a) such unaudited financial statements and
related unaudited supplementary information do not comply as to form in
all material respects with the applicable accounting requirements of the
1933 Act and the published rules and regulations thereunder, (b) such unaudited
financial statements are not fairly presented in conformity with generally
accepted accounting principles, or (c) such unaudited supplementary information
is not fairly stated in all material respects in relation to the unaudited
financial statements taken as a whole;
II-13
and (iv) on the basis of limited procedures agreed
upon by MuniAssets and described in such letter (but not an examination
in accordance with generally accepted auditing standards), the information
relating to High Income Municipal appearing in the N-14 Registration Statement,
which information is expressed in dollars (or percentages derived from such
dollars) (with the exception of performance comparisons, if any), if any,
has been obtained from the accounting records of High Income Municipal or
from schedules prepared by officials of High Income Municipal having responsibility
for financial and reporting matters and such information is in agreement
with such records, schedules or computations made therefrom.
(i) That the High
Income Municipal Investments to be transferred to MuniAssets shall not include
any assets or liabilities which MuniAssets, by reason of charter limitations
or otherwise, may not properly acquire or assume.
(j) That the N-14
Registration Statement shall have become effective under the 1933 Act and
no stop order suspending such effectiveness shall have been instituted or,
to the knowledge of High Income Municipal, be contemplated by the Commission.
(k) That the Commission
shall not have issued an unfavorable advisory report under Section 25(b)
of the 1940 Act, nor instituted or threatened to institute any proceeding
seeking to enjoin consummation of the Reorganization under Section 25(c)
of the 1940 Act, and no other legal, administrative or other proceeding
shall be instituted or threatened which would materially affect the financial
condition of High Income Municipal or would prohibit the Reorganization.
(l) That MuniAssets
shall have received from the Commission such orders or interpretations as
Clifford Chance Rogers & Wells
LLP
, as counsel
to MuniAssets, deems reasonably necessary or desirable under the 1933 Act
and the 1940 Act in connection with the Reorganization, provided, that such
counsel shall have requested such orders as promptly as practicable, and
all such orders shall be in full force and effect.
(m) That all proceedings
taken by High Income Municipal and its counsel in connection with the Reorganization
and all documents incidental thereto shall be satisfactory in form and substance
to MuniAssets.
(n) That prior to
the Closing Date, High Income Municipal shall have declared a dividend or
dividends which, together with all such previous dividends, shall have the
effect of distributing to its stockholders all of its net investment company
taxable income for the period to and including the Closing Date, if any
(computed without regard to any deduction for dividends paid), and all of
its net capital gains, if any, realized to and including the Closing Date.
10.
Termination, Postponement
and Waivers.
(a) Notwithstanding
anything contained in this Agreement to the contrary, this Agreement may
be terminated and the Reorganization abandoned at any time (whether before
or after adoption thereof by the stockholders of the Funds) prior to the
Closing Date, or the Closing Date may be postponed, (i) by mutual consent
of the Boards of Directors of the Funds, (ii) by the Board of Directors
of High Income Municipal if any condition of High Income Municipals
obligations set forth in Section 8 of this Agreement has not been fulfilled
or waived by such Board; or (iii) by the Board of Directors of MuniAssets
if any condition of MuniAssets obligations set forth in Section 9
of this Agreement has not been fulfilled or waived by such Board.
(b) If the transactions
contemplated by this Agreement have not been consummated by June 30, 2002,
this Agreement automatically shall terminate on that date, unless a later
date is mutually agreed to by the Boards of Directors of the Funds.
(c) In the event
of termination of this Agreement pursuant to the provisions hereof, the
same shall become void and have no further effect, and there shall not be
any liability on the part of either Fund or persons who are their directors,
trustees, officers, agents or stockholders in respect of this Agreement.
(d) At any time prior
to the Closing Date, any of the terms or conditions of this Agreement may
be waived by the Board of Directors of either Fund (whichever is entitled
to the benefit thereof), if, in the judgment of such Board after consultation
with its counsel, such action or waiver will not have a material adverse
effect on the benefits intended under this Agreement to the stockholders
of their respective Fund, on behalf of which such action is taken. In addition,
the Board of Directors of MuniAssets has delegated to
II-14
FAM and the Board of Directors of High Income
Municipal has delegated to Merrill Lynch Investment Managers, L.P. (MLIM),
the ability to make non-material changes to the transaction if MLIM or FAM,
as the case may be, deems it to be in the best interests of the Funds to
do so. FAM and the Board of Directors of High Income Municipal has delegated
to Merrill Lynch Investment Managers, L.P. (MLIM), the ability
to make non-material changes to the transaction if MLIM or FAM, as the case
may be, deems it to be in the best interests of the Funds to do so.
(e) The respective
representations and warranties contained in Sections 1 and 2 of this Agreement
shall expire with, and be terminated by, the consummation of the Reorganization,
and no Fund nor any of its officers, directors, trustees, agents or stockholders
shall have any liability with respect to such representations or warranties
after the Closing Date. This provision shall not protect any officer, director,
trustee, agent or stockholder of either Fund against any liability to the
entity for which that officer, director, trustee, agent or stockholder so
acts or to its stockholders, to which that officer, director, trustee, agent
or stockholder otherwise would be subject by reason of willful misfeasance,
bad faith, gross negligence, or reckless disregard of the duties in the
conduct of such office.
(f) If any order
or orders of the Commission with respect to this Agreement shall be issued
prior to the Closing Date and shall impose any terms or conditions which
are determined by action of the Boards of Directors of the Funds to be acceptable,
such terms and conditions shall be binding as if a part of this Agreement
without further vote or approval of the stockholders of the Funds unless
such terms and conditions shall result in a change in the method of computing
the number of shares of MuniAssets Common Stock to be issued to High Income
Municipal, as applicable, in which event, unless such terms and conditions
shall have been included in the proxy solicitation materials furnished to
the stockholders of the Funds prior to the meetings at which the Reorganization
shall have been approved, this Agreement shall not be consummated and shall
terminate unless the Funds promptly shall call a meeting of stockholders
at which such conditions so imposed shall be submitted for approval.
11.
Indemnification.
(a) High Income Municipal
hereby agrees to indemnify and hold MuniAssets harmless from all loss, liability
and expenses (including reasonable counsel fees and expenses in connection
with the contest of any claim), as incurred, which MuniAssets may incur
or sustain by reason of the fact that (i) MuniAssets shall be required to
pay any corporate obligation of High Income Municipal, whether consisting
of tax deficiencies or otherwise, based upon a claim or claims against High
Income Municipal which were omitted or not fairly reflected in the financial
statements to be delivered to MuniAssets in connection with the Reorganization;
(ii) any representations or warranties made by High Income Municipal in
this Agreement should prove to be false or erroneous in any material respect;
(iii) any covenant of High Income Municipal has been breached in any material
respect; or (iv) any claim is made alleging that (a) the N-14 Registration
Statement included any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading or (b) the Joint Proxy Statement and
Prospectus delivered to the stockholders of the Funds and forming a part
of the N-14 Registration Statement included any untrue statement of a material
fact or omitted to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except with respect to (iv)(a) and (b) herein insofar as such
claim is based on written information furnished to High Income Municipal
by MuniAssets.
(b) MuniAssets hereby
agrees to indemnify and hold High Income Municipal harmless from all loss,
liability and expenses (including reasonable counsel fees and expenses in
connection with the contest of any claim), as incurred, which High Income
Municipal may incur or sustain by reason of the fact that (i) any representations
or warranties made by MuniAssets in this Agreement should prove false or
erroneous in any material respect, (ii) any covenant of MuniAssets has been
breached in any material respect, or (iii) any claim is made alleging that
(a) the N-14 Registration Statement included any untrue statement of a material
fact or omitted to state any material fact required to be stated therein
or necessary to make the statements therein, not misleading or (b) the Joint
Proxy Statement and Prospectus delivered to stockholders of the Funds and
forming a part of the N-14 Registration Statement included any untrue statement
of a material fact or omitted to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, except with respect to (iii)(a) and (b) herein
insofar as such claim is based on written information furnished to MuniAssets
by High Income Municipal.
(c) In the event
that any claim is made against MuniAssets in respect of which indemnity
may be sought by MuniAssets from High Income Municipal under Section 11(a)
of this Agreement, or in the event that any claim is made against High Income
Municipal in respect of which indemnity may be sought by
II-15
High Income Municipal from MuniAssets under Section
11(b) of this Agreement, then the party seeking indemnification (the Indemnified
Party), with reasonable promptness and before payment of such claim,
shall give written notice of such claim to the other party (the Indemnifying
Party). If no objection as to the validity of the claim is made in
writing to the Indemnified Party by the Indemnifying Party within thirty
(30) days after the giving of notice hereunder, then the Indemnified Party
may pay such claim and shall be entitled to reimbursement therefor pursuant
to this Agreement. If, prior to the termination of such thirty-day period,
objection in writing as to the validity of such claim is made to the Indemnified
Party, the Indemnified Party shall withhold payment thereof until the validity
of such claim is established (i) to the satisfaction of the Indemnifying
Party, or (ii) by a final determination of a court of competent jurisdiction,
whereupon the Indemnified Party may pay such claim and shall be entitled
to reimbursement thereof, pursuant to this Agreement, or (iii) with respect
to any tax claims, within seven (7) calendar days following the earlier
of (A) an agreement between MuniAssets and High Income Municipal that an
indemnity amount is payable, (B) an assessment of a tax by a taxing authority,
or (C) a determination as defined in Section 1313(a) of the
Code. For purposes of this Section 11, the term assessment shall
have the same meaning as used in Chapter 63 of the Code and Treasury Regulations
thereunder, or any comparable provision under the laws of the appropriate
taxing authority. In the event of any objection by the Indemnifying Party,
the Indemnifying Party promptly shall investigate the claim, and if it is
not satisfied with the validity thereof, the Indemnifying Party shall conduct
the defense against such claim. All costs and expenses incurred by the Indemnifying
Party in connection with such investigation and defense of such claim shall
be borne by it. These indemnification provisions are in addition to, and
not in limitation of, any other rights the parties may have under applicable
law.
12.
Other Matters.
(a)
Pursuant to Rule 145 under the 1933 Act, and in connection with the issuance of
any shares to any person who at the time of the Reorganization is, to its
knowledge, an affiliate of a party to the Reorganization pursuant to Rule
145(c), MuniAssets will cause to be affixed upon the certificate(s) issued to
such person (if any) a legend as follows:
THESE SHARES ARE SUBJECT TO RESTRICTIONS ON
TRANSFER UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED EXCEPT TO MUNIASSETS FUND, INC. (OR ITS STATUTORY SUCCESSOR),
OR ITS PRINCIPAL UNDERWRITER UNLESS (I) A REGISTRATION STATEMENT WITH RESPECT
THERETO IS EFFECTIVE UNDER THE SECURITIES ACT OF 1933 OR (II) IN THE OPINION
OF COUNSEL REASONABLY SATISFACTORY TO THE FUND, SUCH REGISTRATION IS NOT
REQUIRED.
and, further, that stop transfer instructions will
be issued to MuniAssets transfer agent with respect to such shares.
High Income Municipal will provide MuniAssets on the Closing Date with the
name of any stockholder of High Income Municipal who is to the knowledge
of High Income Municipal an affiliate of High Income Municipal on such date.
(b)
All covenants, agreements, representations and warranties made under this
Agreement and any certificates delivered pursuant to this Agreement shall be
deemed to have been material and relied upon by each of the parties,
notwithstanding any investigation made by them or on their behalf.
(c)
Any notice, report or demand required or permitted by any provision of this
Agreement shall be in writing and shall be made by hand delivery, prepaid
certified mail or overnight service, addressed to either Fund, at 800 Scudders
Mill Road, Plainsboro, New Jersey 08536, Attn: Terry K. Glenn, President.
(d)
This Agreement supersedes all previous correspondence and oral communications
between the parties regarding the Reorganization, constitutes the only
understanding with respect to the Reorganization, may not be changed except by
a letter of agreement signed by each party and shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said state.
(e)
Copies of the Articles of Incorporation, as amended, and Articles
Supplementary, as amended, of each Fund are on file with the Maryland
Department and notice is hereby given that this instrument is executed on
behalf of the Directors of each Fund.
II-16
This
Agreement may be executed in any number of counterparts, each of which, when
executed and delivered, shall be deemed to be an original but all such
counterparts together shall constitute but one instrument.
M
UNI
A
SSETS
F
UND
, I
NC
.
B
Y
:
/s/ D
ONALD
C. B
URKE
Donald C. Burke
Vice President
A
TTEST
:
/s/ B
RADLEY
J. L
UCIDO
Bradley J. Lucido
Secretary
M
ERRILL
L
YNCH
H
IGH
I
NCOME
M
UNICIPAL
B
OND
F
UND
, I
NC.
B
Y
:
/s/ D
ONALD
C. B
URKE
Donald C. Burke
Vice President
A
TTEST
:
/s/ A
LICE
A.
P
ELLEGRINO
Alice A. Pellegrino
Secretary
APPENDIX III
RATINGS OF MUNICIPAL
BONDS AND COMMERCIAL PAPER
Description of Moodys Investors Service,
Inc.s (Moodys)
Municipal Bond Ratings
Note:
Moodys applies numerical modifiers 1,
2, and 3 in each generic rating classification from Aa through Caa. The
modifier 1 indicates that the obligation ranks in the higher end of its
generic rating category; the modifier 2 indicates a mid-range ranking; and
the modifier 3 indicates a ranking in the lower end of that generic rating
category.
MIG 1/VMIG 1
This designation denotes superior credit quality. Excellent protection is
afforded by established cash flows, highly reliable liquidity support, or
demonstrated broad-based access to the market for refinancing.
III-1
MIG 2/VMIG 2
This designation denotes strong credit quality. Margins of protection are
ample, although not as large as in the preceding group.
MIG 3/VMIG 3
This designation denotes acceptable credit quality. Liquidity and cash-flow
protection may be narrow, and market access for refinancing is likely to
be less well-established.
SG
This designation denotes speculative-grade credit quality. Debt instruments
in this category may lack sufficient margins of protection.
Description of Moodys Commercial
Paper Ratings (Prime Rating System)
Moodys short-term issuer
ratings are opinions of the ability of issuers to honor senior financial
obligations and contracts. Such obligations generally have an original maturity
not exceeding one year. Moodys employs the following three designations,
all judged to be investment grade, to indicate the relative repayment ability
of rated issuers:
Issuers rated Prime-1 (or
supporting institutions) have a superior ability for repayment of short-term
debt obligations. Prime-1 repayment ability will often be evidenced by many
of the following characteristics: leading market positions in well established
industries; high rates of return on funds employed; conservative capitalization
structures with moderate reliance on debt and ample asset protection; broad
margins, in earning coverage of fixed financial charges and high internal
cash generation; and well-established access to a range of financial markets
and assured sources of alternate liquidity.
Issuers rated Prime-2 (or
supporting institutions) have a strong ability for repayment of senior short-term
debt obligations. This will normally be evidenced by many of the characteristics
cited above but to a lesser degree. Earnings trends and coverage ratios,
while sound, will be more subject to variation. Capitalization characteristics,
while still appropriate, may be more affected by external conditions. Ample
alternate liquidity is maintained.
Issuers rated Prime-3 (or
supporting institutions) have an acceptable ability for repayment of senior
short-term obligations. The effects of industry characteristics and market
composition may be more pronounced. Variability in earnings and profitability
may result in changes to the level of debt protection measurements and may
require relatively high financial leverage. Adequate alternate liquidity
is maintained.
Issuers rated Not Prime do
not fall within any of the Prime rating categories.
If an issuer represents to
Moodys that its short-term debt obligations are supported by the credit
of another entity or entities, then the name or names of such supporting
entity or entities are listed within the parenthesis beneath the name of
the issuer, or there is a footnote referring the reader to another page
for the name or names of the supporting entity or entities. In assigning
ratings to such issuers, Moodys evaluates the financial strength of
the affiliated corporations, commercial banks, insurance companies, foreign
governments or other entities, but only as one factor in the total rating
assessment. Moodys makes no representation and gives no opinion on
the legal validity or enforceability of any support arrangements.
Moodys ratings are opinions,
not recommendations to buy or sell, and their accuracy is not guaranteed.
A rating should be weighed solely as one factor in an investment decision
and you should make your own study and evaluation of any issuer whose securities
or debt obligations you consider buying or selling.
Description of Standard & Poors, A Division
of The McGraw-Hill Companies, Inc. (Standard & Poors),
Municipal Issue Ratings
A Standard & Poors
issue credit rating is a current opinion of the creditworthiness of an obligor
with respect to a specific financial obligation, a specific class of financial
obligations or a specific financial program. It takes into consideration
the creditworthiness of guarantors, insurers, or other forms of credit enhancement
on the obligation.
The issue credit rating is
not a recommendation to purchase, sell or hold a financial obligation, inasmuch
as it does not comment as to market price or suitability for a particular
investor.
III-2
Issue Credit ratings are based
on current information furnished by the obligors or obtained by Standard
& Poors from other sources Standard & Poors considers
reliable. Standard & Poors does not perform an audit in connection
with any rating and may, on occasion, rely on unaudited financial information.
Credit ratings may be changed, suspended or withdrawn as a result of changes
in, or unavailability of, such information, or based on other circumstances.
The ratings are based, in
varying degrees, on the following considerations:
I.
Likelihood of payment-capacity and willingness of the obligor to meet the
financial commitment on an obligation in accordance with the terms of the
obligation; II. Nature of and provisions of the obligation; III. Protection
afforded to, and relative position of, the obligation in the event of bankruptcy,
reorganization or other arrangement under the laws of bankruptcy and other
laws affecting creditors rights.
Obligations rated BB,
B, CCC, CC, and C are regarded
as having significant speculative characteristics. BB indicates
the least degree of speculation and C the highest degree of
speculation. While such debt will likely have some quality and protective
characteristics, these may be outweighed by large uncertainties or major
risk exposures to adverse conditions.
Plus
(+) or
Minus
(-): The ratings from AA
to CCC may be modified by the addition of a plus or minus sign
to show relative standing within the major rating categories.
Description of Standard & Poors Short-Term Issuer
Credit
Issue credit ratings can be
either long term or short term. Short-term ratings are generally assigned
to those obligations considered short term in the relevant market. In the
U.S., for example, that means obligations with an
III-3
original maturity of no more than 365 daysincluding
commercial paper. Short-term ratings are also used to indicate the creditworthiness
of an obligor with respect to put features on long-term obligations. The
result is a dual rating, in which the short-term ratings address the put
feature, in addition to the usual long-term rating. Medium-term notes are
assigned long-term ratings.
Local Currency and Foreign
Currency Risks:
Country risk considerations are a standard part of Standard
& Poors analysis for credit ratings on any issuer or issue. Currency
of repayment is a key factor in this analysis. An obligors capacity
to repay foreign currency obligations may be lower than its capacity to
repay obligations in its local currency due to the sovereign governments
own relatively lower capacity to repay external versus domestic debt. These
sovereign risk considerations are incorporated in the debt ratings assigned
to specific issues. Foreign currency issuer ratings are also distinguished
from local currency issuer ratings to identify those instances where sovereign
risks make them different for the same issuer.
and
D
<R>
Description of Fitch, Inc.s (Fitch)
Investment Grade Bond Ratings
When assigning ratings, Fitch
considers the historical and prospective financial condition, quality of
management, and operating performance of the issuer and of any guarantor,
any special features of a specific issue or guarantee, the issues
relationship to other obligations of the issuer, as well as developments
in the economic and political environment that might affect the issuers
financial strength and credit quality. In the case of a structured financing,
the quality of its underlying assets and the integrity of its legal structure
are considered. In the case of banks, for which sector there is a history
of rescue by sovereign lenders of last resort or by major shareholders,
the potential strength of any such support is also taken into account in
the ratings.
III-4
Investment-grade ratings reflect
expectations of timeliness of payment. However, ratings of different classes
of obligations of the same issuer may vary based on expectations of recoveries
in the event of a default or liquidation. Recovery expectations, which are
the amounts expected to be received by investors after a security defaults,
are a relatively minor consideration in investment grade ratings, but we
do use notching of particular issues to reflect their degree
of preference in a winding up, liquidation, or reorganization, as well as
other factors. Recoveries do, however, gain in importance at lower rating
levels, because of the greater likelihood of default, and become the major
consideration at the DDD category. Factors that affect recovery
expectations include collateral and seniority relative to other obligations
in the capital structure.
Entities or issues carrying
the same rating are of similar but not necessarily identical credit quality
since the rating categories do not fully reflect small differences in the
degrees of credit risk.
Fitch ratings are not recommendations
to buy, sell, or hold any security. Ratings do not comment on the adequacy
of market price, the suitability of any security for a particular investor,
or the tax-exempt nature or taxability of payments made in respect of any
security.
Fitch ratings are based on
information obtained from issuers, other obligors, underwriters, their experts,
and other sources Fitch believes to be reliable. Fitch does not audit or
verify the truth or accuracy of such information. Ratings may be changed,
suspended, or withdrawn as a result of changes in, or the unavailability
of, information or for other reasons.
NR Indicates that Fitch does
not rate the specific issue.
Withdrawn: A rating
will be withdrawn when an issue matures or is called or refinanced and,
at Fitchs discretion, when an issuer fails to furnish proper and timely
information.
Rating Watch: Ratings are
placed on Rating Watch to notify investors that there is a reasonable probability
of a rating change and the likely direction of such change. These are designated
as Positive, indicating a potential upgrade, Negative,
for potential downgrade, or Evolving, if ratings may be raised,
lowered, or maintained. Rating Watch is typically resolved over a relatively
short period.
<R>Rating Outlook: A
Rating Outlook indicates the direction a rating is likely to move over a
one to two-year period. Outlooks may be positive, stable or negative. A
positive or negative Rating Outlook does not imply a rating change is inevitable.
Similarly, companies whose outlooks are stable could be upgraded
or downgraded before an outlook moves to positive or negative if circumstances
warrant such an action. Occasionally, Fitch may be unable to identify the
fundamental trend. In these cases, the Rating Outlook may be described as
evolving. </R>
Description of Fitchs Speculative Grade Bond Ratings
Fitch speculative grade bond
ratings provide a guide to investors in determining the credit risk associated
with a particular security. The ratings (BB to C)
represent Fitchs assessment of the likelihood of timely payment of
principal and interest in accordance with the terms of obligation for bond
issues not in default. For
III-5
defaulted bonds, the rating (DDD to D)
is an assessment of the ultimate recovery value through reorganization or
liquidation.
The rating takes into consideration
special features of the issue, its relationship to other obligations of
the issuer, the current and prospective financial condition and operating
performance of the issuer and any guarantor, as well as the economic and
political environment that might affect the issuers future financial
strength.
Bonds that have the rating
are of similar but not necessarily identical credit quality since rating
categories cannot fully reflect the differences in degrees of credit risk.
CC,
and C
DD,
and D
Description of Fitchs Short-Term Ratings
Fitchs short-term ratings
apply to debt obligations that are payable on demand or have original maturities
of up to three years, including commercial paper, certificates of deposit,
medium-term notes, and municipal and investment notes.
The short-term rating places
greater emphasis than a long-term rating on the existence of liquidity necessary
to meet the issuers obligations in a timely manner.
Fitch short-term ratings are
as follows:
III-6
Notes
to Long-term and Short-term ratings:
+ or
- may be appended to a rating to denote relative status within major rating
categories. Such suffixes are not added to the AAA Long-term rating category,
to categories below CCC, or to Short-term ratings other than F1.
NR
indicates that Fitch does not rate the issuer or issue in question.
Withdrawn:
A rating is withdrawn when Fitch deems the amount of information available to
be inadequate for rating purposes, or when an obligation matures, is called, or
refinanced.
Rating
Watch: Ratings are placed on Rating Watch to notify investors that there is a
reasonable probability of a rating change and the likely direction of such
change. These are designated as Positive, indicating a potential upgrade,
Negative, for a potential downgrade, or Evolving, if ratings may be raised,
lowered or maintained. Rating Watch is typically resolved over a relatively
short period.
III-7
APPENDIX IV
CHARTER OF THE AUDIT
COMMITTEE OF
THE BOARD OF DIRECTORS OF MUNIASSETS FUND, INC.
Although
MuniAssets Fund, Inc.s audit committee also serves as a nominating committee,
the following charter pertains only to its audit and nominating committees
duties as an audit committee. The Board of Directors of the Fund has adopted
the following audit committee charter:
I.
Composition of the Audit
Committee
The
Audit Committee shall be composed of at least three Directors:
(a)
each of whom shall not be an interested person of the Fund, as
defined in Section 2(a)(19) of the Investment Company Act of 1940, as amended;
(b) each
of whom shall not have any relationship to the Fund that may interfere with the
exercise of their independence from Fund management and the Fund;
(c) each
of whom shall otherwise satisfy the applicable independence requirements for
any stock exchange or market quotation system on which Fund shares are listed
or quoted;
(d) each
of whom shall be financially literate, as such qualification is interpreted by
the Board of Directors in its business judgment, or shall become financially
literate within a reasonable period of time after his or her appointment to the
Audit Committee; and
(e) at
least one of whom shall have accounting or related financial management
expertise as the Board of Directors interprets such qualification in its
business judgment.
II.
Purposes of the Audit Committee
The
purposes of the Audit Committee are to assist the Board of Directors:
(a) in
its oversight of the Funds accounting and financial reporting policies
and practices, the Funds internal audit controls and procedures and, as
appropriate, the internal audit controls and procedures of certain of the Funds
service providers;
(b)
in its oversight of the Funds financial statements and the independent
audit thereof; and
(c)
in acting as a liaison between the Funds independent accountants and the
Board of Directors.
The
function of the Audit Committee is oversight. Fund management is responsible
for maintaining appropriate systems for accounting. The independent accountants
of the Fund are responsible for conducting a proper audit of the Funds
financial statements.
III.
Responsibilities and Duties of
the Audit Committee
The
policies and procedures of the Audit Committee shall remain flexible to
facilitate its ability to react to changing conditions and to generally
discharge its functions. The following listed responsibilities describe areas
of attention in broad terms.
To carry
out its purposes, the Audit Committee shall have the following responsibilities
and duties:
(a)
to recommend the selection, retention or termination of the Funds
independent accountants based on an evaluation of their independence and the
nature and performance of audit services and other services;
(b)
to ensure that the independent accountants for the Fund submit on a periodic
basis to the Audit Committee a formal written statement delineating all
relationships between such independent accountants and the Fund, consistent
with Independence Standards Board Standard No. 1, and actively engage in a
dialogue with the independent accountants for the Fund with respect to any
disclosed relationships or services that may impact the objectivity and
independence of such independent accountants and, if deemed appropriate by the
Audit Committee, to recommend that the Board of Directors take appropriate
action in response to the report of such independent accountants to satisfy
itself of the independence of such independent accountants;
IV-I
(c)
to receive specific representations from the independent accountants with
respect to their independence and to consider whether the provision of any
disclosed non-audit services by the independent accountants is compatible with
maintaining the independence of those accountants;
(d)
to review the fees charged by independent accountants for audit and other
services;
(e)
to review with the independent accountants arrangements for annual audits and
special audits and the scope thereof;
(f)
to discuss with the independent accountants those matters required by SAS No.
61 and SAS No. 90 relating to the Funds financial statements, including,
without limitation, any adjustment to such financial statements recommended by
such independent accountants, or any other results of any audit;
(g)
to consider with the independent accountants their comments with respect to the
quality and adequacy of the Funds accounting and financial reporting
policies, practices and internal controls and managements responses
thereto, including, without limitation, the effect on the Fund of any
recommendation of changes in accounting principles or practices by management
or the independent accountants;
(h)
to report to the Board of Directors regularly with respect to the Audit
Committees activities and to make any recommendations it believes
necessary or appropriate with respect to the Funds accounting and
financial reporting policies, practices and the Funds internal controls;
(i)
to review and reassess the adequacy of this Charter on an annual basis and
recommend any changes to the Board of Directors;
(j)
to review legal and regulatory matters presented by counsel and the independent
accountants for the Fund that may have a material impact on the Funds
financial statements;
(k)
to cause to be prepared and to review and submit any report, including any
recommendation of the Audit Committee, required to be included in the Funds
annual proxy statement by the rules of the Securities and Exchange Commission;
(l)
to assist the Fund, if necessary, in preparing any written affirmation or
written certification required to be filed with any stock exchange on which
Fund shares are listed; and
(m)
to perform such other functions consistent with this Charter, the Funds
By-laws and governing law, as the Audit Committee or the Board of Directors
deems necessary or appropriate.
In fulfilling their responsibilities
hereunder, it is recognized that members of the Audit Committee are not
full-time employees of the Fund and are not, and do not represent themselves
to be, accountants or auditors by profession or experts in the field of
accounting or auditing. As such, it is not the duty or responsibility of
the Audit. Committee or its members to conduct field work or
other types of auditing or accounting reviews or procedures, and each member
of the Audit Committee shall be entitled to rely on (i) the integrity of
those persons and organizations inside and outside the Fund from which the
Audit Committee receives information and (ii) the accuracy of the financial
and other information provided to the Audit Committee by such persons or
organizations absent actual knowledge to the contrary (which actual knowledge
shall be promptly reported to the Board of Directors).
The independent accountants
for the Fund are ultimately accountable to the Board of Directors and the
Audit Committee. The Board of Directors and the Audit Committee have the
ultimate authority and responsibility to select, evaluate and, where appropriate,
replace the independent accountants for the Fund (or to nominate the independent
accountants to be proposed for shareholder approval in the proxy statement).
IV.
Meetings
The Audit Committee shall meet
at least once annually with the independent accountants (outside the presence
of Fund management) and at least once annually with the representatives
of Fund management responsible for the financial and accounting operations
of the Fund. The Audit Committee shall hold special meetings at such times
as the Audit Committee believes appropriate. Members of the Audit Committee
may participate in a meeting of the Audit Committee by means of conference
call or similar communications equipment by means of which all persons participating
in such meeting can hear each other.
IV-2
V.
Outside Resources and Assistance
from Fund Management
The
appropriate officers of the Fund shall provide or arrange to provide such
information, data and services as the Audit Committee may request. The Audit
Committee shall have the power and authority to take all action it believes
necessary or appropriate to discharge its responsibilities, including the
authority to retain at the expense of the Fund their own counsel and other
experts and consultants whose expertise would be considered helpful to the
Audit Committee.
Dated June 6, 2000
Revised April 11, 2001
IV-3
</R>
PART C
OTHER INFORMATION
Item 15.
Indemnification.
Section
2-418 of the General Corporation Law of the State of Maryland, Article VI of
the Registrants Articles of Incorporation, which was previously filed as an
exhibit to the Common Stock Registration Statement (as defined below), Article
VI of the Registrants By-Laws, which was previously filed as an exhibit to the
Common Stock Registration Statement, and the Investment Advisory Agreement, a
form of which was previously filed as an exhibit to the Common Stock
Registration Statement, provide for indemnification.
Insofar as indemnification
for liabilities arising under the Securities Act of 1933, as amended (the
1933 Act), may be provided to directors, officers and controlling
persons of the Registrant, pursuant to the foregoing provisions or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission, such indemnification is against public
policy as expressed in the 1933 Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in connection with any successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
Reference
is made to Section 6 of the Purchase Agreement relating to the Registrants
Common Stock, a form of which was filed as an exhibit to the Common Stock
Registration Statement.
<R>
Item 16.
Exhibits.
(b)
Consent of Deloitte & Touche
LLP
,
independent auditors for Merrill Lynch High Income Municipal Bond Fund,
Inc.
*
To be filed by post-effective amendment.
(a)
Refiled as an Exhibit to this Pre-Effective Amendment
No. 1 to the Registrants Registration Statement on Form N-14 (File
No. 333-65446) (the N-14 Registration Statement) pursuant to
Electronic Data Gathering, Analysis and Retrieval (EDGAR) requirements.</R>
C-1
(b)
Reference is made to Article
V, Article VI (sections 2, 3, 4, 5 and 6), Article VII, Article VIII, Article
X, Article XI, Article XII and Article XIII of the Registrants Articles
of Incorporation, previously filed as Exhibit (1) to the Registration
Statement, and to Article II, Article III (sections 1, 2, 3, 5 and 17), Article
VI, Article VII, Article XII, Article XIII and Article XIV of the Registrants
By-Laws previously filed as Exhibit (2) to the Registration Statement.
(c)
Incorporated by reference to
Exhibit 15 to Post-Effective Amendment No. 8 to the Registration Statement on
Form N-1A of Merrill Lynch Middle East/Africa Fund, Inc. (File No. 33-55843),
filed on March 29, 2000.<R>
(d)
Filed on July 19, 2001 as an
Exhibit to the N-14 Registration Statement.
(e)
Included on the signature
page of the N-14 Registration Statement and incorporated herein by reference.</R>
Item 17.
Undertakings.
(1)
The undersigned Registrant
agrees that prior to any public reoffering of the securities registered through
use of a prospectus which is part of this Registration Statement by any person
or party who is deemed to be an underwriter within the meaning of Rule 145(c)
of the Securities Act of 1933, as amended, the reoffering prospectus will
contain information called for by the applicable registration form for
reofferings by persons who may be deemed underwriters, in addition to the
information called for by other items of the applicable form.
(2) | The undersigned Registrant agrees that every prospectus that is filed under paragraph (1) above will be filed as part of an amendment to the registration statement and will not be used until the amendment is effective, and that, in determining any liability under the Securities Act of 1933, as amended, each post-effective amendment shall be deemed to be a new registration statement for the securities offered therein, and the offering of securities at that time shall be deemed to be the initial bona fide offering of them. |
(3) | The Registrant undertakes to file, by post-effective amendment, a copy of an opinion of counsel as to certain tax matters within a reasonable time after receipt of such opinion. |
C-2 |
SIGNATURES |
<R>As required by the Securities Act of 1933, this Registration Statement has been signed on behalf of the Registrant, in the Township of Plainsboro and State of New Jersey, on the 10th day of September, 2001.</R> |
M
UNI
A
SSETS
F
UND
, I
NC
.
(Registrant) |
||
|
By:
|
/s/ D
ONALD
C. B
URKE
(Donald C. Burke, Vice President and Treasurer) |
|
As required by the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. |
Signature
|
Title
|
Date
|
||
T ERRY K. G LENN * (Terry K. Glenn) |
President and Director
|
|||
|
||||
D ONALD C. B URKE * (Donald C. Burke) |
Vice President and Treasurer
|
|||
J
OE
G
RILLS
*
(Joe Grills) |
Director |
|||
W
ALTER
M
INTZ
*
(Walter Mintz) |
Director |
|||
R
OBERT
S. S
ALOMON
, J
R.
*
(Robert S. Salomon, Jr.) |
Director |
|||
M
ELVIN
R. S
EIDEN
*
(Melvin R. Seiden) |
Director |
|||
S
TEPHEN
B. S
WENSRUD
*
(Stephen B. Swensrud) |
Director |
|||
*By /s/ D
ONALD
C. B
URKE
(Donald C. Burke, Attorney-in-Fact)) |
September 10, 2001 |
C-3 |
1
(a)
(b)
5
INDEX TO EXHIBITS
<R>
Exhibit
Number
Description
Articles of Incorporation of the Registrant, dated April
14, 1993.
Articles of Amendment to Articles of Incorporation.
(b)
Form of specimen certificate for the Common Stock of
the Registrant.
6
Form of Investment Advisory Agreement between the Registrant
and Fund Asset Management, L.P.
7
(a)
Form of Purchase Agreement.
(b)
Form of Merrill Lynch Standard Dealer Agreement.
9
Form of Custodian Agreement between the Registrant and
The Bank of New York.
11
Opinion of Clifford Chance Rogers & Wells
LLP
,
counsel for the Registrant.
13
Form of Transfer Agency, Dividend Disbursing Agency and
Shareholder Servicing Agency Agreement between the Registrant and The Bank
of New York. </R>
14
(a)
Consent of Deloitte & Touche
LLP
,
independent auditors for the registrant.
14
(b)
Consent of Deloitte & Touche
LLP
,
independent auditors for Merrill Lynch High Income Municipal Bond Fund,
Inc.
[Proxy Card Front] |
MERRILL LYNCH HIGH
INCOME MUNICIPAL BOND FUND, INC.
P.O. BOX 9011 PRINCETON, NEW JERSEY 08543-9011 |
PROXY |
This proxy is solicited on behalf of the Board of Directors |
The undersigned hereby appoints Terry K. Glenn, Donald C. Burke and Alice A. Pellegrino as proxies, each with the power to appoint his or her substitute, and hereby authorizes each of them to represent and to vote, as designated on the reverse hereof, all of the shares of Common Stock of Merrill Lynch High Income Municipal Bond Fund, Inc. (the Fund) held of record by the undersigned on August 27, 2001 at the Special Meeting of Stockholders of the Fund to be held on October 24, 2001, or any adjournment thereof. |
This proxy when properly executed will be voted in the manner herein directed by the undersigned stockholder. If no direction is made, this proxy will be voted FOR approval of the Agreement and Plan of Reorganization. |
By signing and dating the reverse side of this card, you authorize the proxies to vote the proposal as marked, or if not marked, to vote FOR the proposal, and to use their discretion to vote for any other matter as may properly come before the meeting or any adjournment thereof. If you do not intend to personally attend the meeting, please complete and return this card at once in the enclosed envelope. |
You may also vote your shares by touch-tone phone by calling 1-800-690-6903 or through the Internet at www.proxyvote.com. |
(Continued and to be signed on the reverse side) |
[Proxy Card Reverse] |
Please mark boxes / / or /X/ in blue or black ink. |
1. | To consider and act upon a proposal to approve the Agreement and Plan of Reorganization between the Fund and MuniAssets Fund, Inc. |
FOR / / | AGAINST / / | ABSTAIN / / |
2. | In the discretion of such proxies, upon such other business as properly may come before the meeting or any adjournment thereof. |
. |
Please sign exactly as name appears hereon.
When shares are held by joint tenants, both should sign. When signing
as attorney or as executor, administrator, trustee or guardian, please
give full title as such. If a corporation, please sign in full corporate
name by president or other authorized officer. If a partnership, please
sign in partnership name by authorized persons.
Dated: _____________________________ X _________________________________ Signature X _________________________________ Signature, if held jointly |
Sign, date, and Return the Proxy Card Promptly Using the Enclosed Envelope. |
[Proxy Card Front] |
MUNIASSETS FUND, INC.
P.O. BOX 9011 PRINCETON, NEW JERSEY 08543-9011 |
PROXY |
This proxy is solicited on behalf of the Board of Directors |
The undersigned hereby appoints Terry K. Glenn, Donald C. Burke and Bradley J. Lucido as proxies, each with the power to appoint his substitute, and hereby authorizes each of them to represent and to vote, as designated on the reverse hereof, all of the shares of Common Stock of MuniAssets Fund, Inc. (the Fund) held of record by the undersigned on August 27, 2001 at the Annual Meeting of Stockholders of the Fund to be held on October 24, 2001, or any adjournment thereof. |
This proxy when properly executed will be voted in the manner herein directed by the undersigned stockholder. If no direction is made, this proxy will be voted FOR Items 1 and 2. |
By signing and dating the reverse side of this card, you authorize the proxies to vote each proposal as marked, or if not marked, to vote FOR each proposal, and to use their discretion to vote for any other matter as may properly come before the meeting or any adjournment thereof. If you do not intend to personally attend the meeting, please complete and return this card at once in the enclosed envelope. |
You may also vote your shares by touch-tone phone by calling 1-800-690-6903 or through the Internet at www.proxyvote.com. |
(Continued and to be signed on the reverse side) |
[Proxy Card Reverse] |
Please mark boxes / / or /X/ in blue or black ink. |
1. | To consider and act upon a proposal to approve the Agreement and Plan of Reorganization between the Fund and Merrill Lynch High Income Municipal Bond Fund, Inc. |
FOR / / | AGAINST / / | ABSTAIN / / |
2 . |
To elect two Class
I Directors for
a term of three years |
FOR all nominees listed below (except as marked to the contrary below) / / | WITHHOLD AUTHORITY to vote for all nominees listed below / / |
(INSTRUCTION: To withhold authority to vote for any individual nominee, strike a line through the nominees name in the list below.) |
Class I Nominees: Joe Grills, Robert S. Salomon, Jr. |
3. | In the discretion of such proxies, upon such other business as properly may come before the meeting or any adjournment thereof. |
. |
Please sign exactly as name appears hereon.
When shares are held by joint tenants, both should sign. When signing
as attorney or as executor, administrator, trustee or guardian, please
give full title as such. If a corporation, please sign in full corporate
name by president or other authorized officer. If a partnership, please
sign in partnership name by authorized persons.
Dated: _____________________________ X _________________________________ Signature X _________________________________ Signature, if held jointly |
Sign, Date, and Return the Proxy Card Promptly Using the Enclosed Envelope. |
Exhibit 1(a)
ARTICLES OF INCORPORATION
OF
MUNIINCOME FUND, INC.
ARTICLE I
THE UNDERSIGNED, Jon R. Lewis, whose post-office address is c/o Rogers & Wells, 200 Park Avenue, New York, New York 10166, being at least eighteen (18) years of age, does hereby act as an incorporator, under and by virtue of the General Laws of the State of Maryland authorizing the formation of corporations and with the intention of forming a corporation.
ARTICLE II
NAME
The name of the corporation is MUNIINCOME FUND, INC. (the "Corporation").
ARTICLE III
PURPOSES AND POWERS
The purpose or purposes for which the Corporation is formed is to act as a closed-end, management investment company under the Investment Company Act of 1940, as amended, and to exercise and enjoy all of the powers, rights and privileges granted to, or conferred upon, corporations by the General Laws of the State of Maryland now or hereafter in force.
ARTICLE IV
PRINCIPAL OFFICE AND RESIDENT AGENT
The post-office address of the principal office of the Corporation in the State of Maryland is c/o The Corporation Trust Incorporated, 32 South Street, Baltimore, Maryland 21202. The name of the resident agent of the Corporation in this State is The Corporation Trust Incorporated, a corporation of this State, and the post-office address of the resident agent is The Corporation Trust Incorporated, 32 South Street, Baltimore, Maryland 21202.
ARTICLE V
CAPITAL STOCK
(1) The total number of shares of capital stock which the Corporation shall have authority to issue is Two Hundred Million (200,000,000) shares, all of one class called Common Stock, of the par value of Ten Cents ($0.10) per share and of the aggregate par value of Twenty Million Dollars ($20,000,000).
(2) The Board of Directors may classify and reclassify any unissued shares of capital stock into one or more additional or other classes or series as may be established from time to time by setting or changing in any one or more respects the designations, preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends, qualifications or terms or conditions of redemption of such shares of stock and pursuant to such classification or reclassification to increase or decrease the number of authorized shares of any existing class or series.
(3) Unless otherwise expressly provided in the charter of the Corporation, including any Articles Supplementary creating any class or series of capital stock, the holders of each class or series of capital stock shall be entitled to dividends and distributions in such amounts and at such times as may be determined by the Board of Directors, and the dividends and distributions paid with respect to the various classes or series of capital stock may vary among such classes and series.
(4) Unless otherwise expressly provided in the charter of the Corporation, including any Articles Supplementary creating any class or series of capital stock, on each matter submitted to a vote of stockholders, each holder of a share of capital stock of the Corporation shall be entitled to one vote for each share standing in such holder's name on the books of the Corporation, irrespective of the class or series thereof, and all shares of all classes and series shall vote together as a single class; provided, however, that as to any matter with respect to which a separate vote of any class or series is required by the Investment Company Act of 1940, as amended, and in effect from time to time, or any rules, regulations or orders issued thereunder, or by the Maryland General Corporation Law, such requirement as to a separate vote by that class or series shall apply in lieu of a general vote of all classes and series as described above.
(5) Notwithstanding any provision of the Maryland General Corporation Law requiring a greater proportion than a majority of the votes of all classes or series of capital stock of the Corporation (or of any class or series entitled to vote thereon as
a separate class or series) to take or authorize any action, the Corporation is hereby authorized (subject to the requirements of the Investment Company Act of 1940, as amended, and in effect from time to time, and any rules, regulations and orders issued thereunder) to take such action upon the concurrence of a majority of the aggregate number of shares of capital stock of the Corporation entitled to vote thereon (or a majority of the aggregate number of shares of a class or series entitled to vote thereon as a separate class or series).
(6) Unless otherwise expressly provided in the charter of the Corporation, including any Articles Supplementary creating any class or series of capital stock, in the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the holders of all classes and series of capital stock of the Corporation shall be entitled, after payment or provision for payment of the debts and other liabilities of the Corporation, to share ratably in the remaining net assets of the Corporation.
(7) Any fractional shares shall carry proportionately all the rights of a whole share, excepting any right to receive a certificate evidencing such fractional share, but including, without limitation, the right to vote and the right to receive dividends.
(8) All persons who shall acquire stock in the Corporation shall acquire the same subject to the provisions of the charter and By-Laws of the Corporation. As used in the charter of the Corporation, the terms "charter" and "Articles of Incorporation" shall mean and include the Articles of Incorporation of the
Corporation as amended, supplemented and restated from time to time by Articles of Amendment, Articles Supplementary, Articles of Restatement or otherwise.
ARTICLE VI
PROVISIONS FOR DEFINING, LIMITING AND
REGULATING CERTAIN POWERS OF THE
CORPORATION AND OF THE DIRECTORS
AND STOCKHOLDERS
(1) The number of directors of the Corporation shall be three (3), which number may be changed pursuant to the By-Laws of the Corporation but shall never be less than three (3). The names of the directors who shall act until the first annual meeting or until their successors are duly elected and qualify are:
Robert Harris Philip L. Kirstein Mark B. Goldfus
(2) The Board of Directors of the Corporation is hereby empowered to authorize the issuance from time to time of shares of capital stock, whether now or hereafter authorized, for such consideration as the Board of Directors may deem advisable, subject to such limitations as may be set forth in these Articles of Incorporation or in the By-Laws of the Corporation or in the General Laws of the State of Maryland.
(3) Each director and each officer of the Corporation shall be indemnified by the Corporation to the full extent permitted by the General Laws of the State of Maryland, subject to the requirements of the Investment Company Act of 1940, as amended. No amendment of these Articles of Incorporation or repeal of any provision hereof shall limit or eliminate the benefits provided to
directors and officers under this provision in connection with any act or omission that occurred prior to such amendment or repeal.
(4) To the fullest extent permitted by the General Laws of the State of Maryland, subject to the requirements of the Investment Company Act of 1940, as amended, no director or officer of the Corporation shall be personally liable to the Corporation or its security holders for money damages. No amendment of these Articles of Incorporation or repeal of any provision hereof shall limit or eliminate the benefits provided to directors and officers under this provision in connection with any act or omission that occurred prior to such amendment or repeal.
(5) The Board of Directors of the Corporation may make, alter or repeal from time to time any of the By-Laws of the Corporation except any particular By-Law which is specified as not subject to alteration or repeal by the Board of Directors, subject to the requirements of the Investment Company Act of 1940, as amended.
(6) A director elected by the holders of capital stock may be removed (with or without cause), but only by action taken by the holders of at least sixty-six and two-thirds percent (66 2/3%) of the shares of capital stock then entitled to vote in an election to fill that directorship.
ARTICLE VII
DENIAL OF PREEMPTIVE RIGHTS
No shareholder of the Corporation shall by reason of his holding shares of capital stock have any preemptive or preferential right to purchase or subscribe to any shares of capital stock of the Corporation, now or hereafter to be authorized, or any notes,
debentures, bonds or other securities convertible into shares of capital stock, now or hereafter to be authorized, whether or not the issuance of any such shares, or notes, debentures, bonds or other securities would adversely affect the dividend or voting rights of such shareholder; and the Board of Directors may issue shares of any class of the Corporation, or any notes, debentures, bonds, other securities convertible into shares of any class, either whole or in part, to the existing shareholders.
ARTICLE VIII
DETERMINATION BINDING
Any determination made in good faith, so far as accounting matters are involved, in accordance with accepted accounting practice by or pursuant to the direction of the Board of Directors, as to the amount of assets, obligations or liabilities of the Corporation, as to the amount of net income of the Corporation from dividends and interest for any period or amounts at any time legally available for the payment of dividends, as to the amount of any reserves or charges set up and the propriety thereof, as to the time of or purpose for creating reserves or as to the use, alteration or cancellation of any reserves or charges (whether or not any obligation or liability for which such reserves or charges shall have been created, shall have been paid or discharged or shall be then or thereafter required to be paid or discharged), as to the price of any security owned by the Corporation or as to any other matters relating to the issuance, sale, redemption or other acquisition or disposition of securities or shares of capital stock of the Corporation, and any reasonable determination made in good
faith by the Board of Directors as to whether any transaction constitutes a
purchase of securities on "margin," a sale of securities "short," or an
underwriting of the sale of, or a participation in any underwriting or selling
group in connection with the public distribution of, any securities, shall be
final and conclusive, and shall be binding upon the Corporation and all holders
of its capital stock, past, present and future, and shares of the capital stock
of the Corporation are issued and sold on the condition and understanding,
evidenced by the purchase of shares of capital stock or acceptance of share
certificates, that any and all such determinations shall be binding as
aforesaid. No provision of these Articles of Incorporation shall be effective to
(a) require a waiver of compliance with any provision of the Securities Act of
1933, as amended, or the Investment Company Act of 1940, as amended, or of any
valid rule, regulation or order of the Securities and Exchange Commission
thereunder or (b) protect or purport to protect any director or officer of the
Corporation against any liability to the Corporation or its security holders to
which he would otherwise be subject by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
his office.
ARTICLE IX
PERPETUAL EXISTENCE
The duration of the Corporation shall be perpetual.
ARTICLE X
PRIVATE PROPERTY OF STOCKHOLDERS
The private property of Stockholders shall not be subject to the payment of corporate debts to any extent whatsoever.
ARTICLE XI
CONVERSION TO OPEN-END COMPANY
Notwithstanding any other provisions of these Articles of Incorporation or the By-Laws of the Corporation, a favorable vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the outstanding shares of capital stock of the Corporation entitled to be voted on the matter shall be required to approve, adopt or authorize an amendment to these Articles of Incorporation of the Corporation that makes the Common Stock a "redeemable security" (as that term is defined in section 2(a) (32) the Investment Company Act of 1940, as amended) unless such action has previously been approved, adopted or authorized by the affirmative vote of at least two-thirds of the total number of directors fixed in accordance with the By-Laws of the Corporation, in which case the affirmative vote of the holders of a majority of the outstanding shares of capital stock of the Corporation entitled to vote thereon shall be required.
ARTICLE XII
MERGER, SALE OF ASSETS, LIQUIDATION
Notwithstanding any other provisions of these Articles of Incorporation or the By-Laws of the Corporation, a favorable vote of the holders of at least sixty-six and two-thirds percent (66 2/3%)
of the outstanding shares of capital stock of the Corporation entitled to be
voted on the matter shall be required to approve, adopt or authorize (i) a
merger or consolidation or statutory share exchange of the Corporation with any
other corporation, (ii) a sale of all or substantially all of the assets of the
Corporation (other than in the regular course of its investment activities), or
(iii) a liquidation or dissolution of the Corporation, unless such action has
previously been approved, adopted or authorized by the affirmative vote of at
least two-thirds of the total number of directors fixed in accordance with the
By-Laws of the Corporation, in which case the affirmative vote of the holders of
a majority of the outstanding shares of capital stock of the Corporation
entitled to vote thereon shall be required.
ARTICLE XIII
AMENDMENT
The Corporation reserves the right to amend, alter, change or repeal any provision contained in these Articles of Incorporation, in the manner now or hereafter prescribed by statute, including any amendment which alters the contract rights, as expressly set forth in the charter, of any outstanding stock and substantially adversely affects the stockholders' rights and all rights conferred upon stockholders herein are granted subject to this reservation. Notwithstanding any other provisions of these Articles of Incorporation or the By-Laws of the Corporation (and notwithstanding the fact that a lesser percentage may be specified by law, these Articles of Incorporation or the By-Laws of the Corporation) the amendment or repeal of Section (5) of Article V,
Section (1), Section (3), Section (4), Section (5) and Section (6) of Article VI, Article IX, Article X, Article XI, Article XII, or this Article XIII, of these Articles of Incorporation shall require the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the outstanding shares of capital stock of the Corporation entitled to be voted on the matter.
IN WITNESS WHEREOF, the undersigned incorporator of MuniIncome Fund, Inc. hereby executes the foregoing Articles of Incorporation and acknowledges the same to be his act and further acknowledges that, to the best of his knowledge, the matters and facts set forth therein are true in all material respects under the penalties of perjury.
Dated the 14th day
of April 1993
/s/ Jon R. Lewis ----------------------- Jon R. Lewis |
Exhibit 1(b)
MUNIINCOME FUND, INC.
ARTICLES OF AMENDMENT
MUNIINCOME FUND, INC., a Maryland corporation having its principal office c/o The Corporation Trust Incorporated, 32 South Street, Baltimore, Maryland 21202 (hereinafter called the Corporation), hereby certifies to the State Department of Assessments and Taxation of Maryland, that:
FIRST: The charter of the Corporation is hereby amended by striking out Article II of the Articles of Incorporation and inserting in lieu thereof the following:
ARTICLE II
NAME
The name of the corporation is MUNIASSETS FUND, INC. (the "Corporation").
SECOND: The foregoing amendment to the charter of the Corporation has been duly approved by the entire Board of Directors by Unanimous Written Consent dated as of the 5th day of May, 1993 and at the time of the approval by the Directors there were no shares of stock of the Corporation entitled to vote on the matter either outstanding or subscribed for.
The President acknowledges these Articles of Amendment to be the corporate act of the Corporation and states that to the best of his knowledge, information and belief the matters and facts set forth in these Articles with respect to the authorization and approval of the amendment of the Corporation's charter are true in all material respects, and that this statement is made under the penalties of perjury.
IN WITNESS WHEREOF, MuniIncome Fund, Inc. has caused these Articles to be signed in its name and on its behalf by its President and attested by its Secretary on May 5, 1993.
MUNIINCOME FUND, INC.
By: /s/ Philip L. Kirstein ----------------------------- Philip L. Kirstein, President Attest: By: /s/ Mark B. Goldfus ---------------------------- Mark B. Goldfus, Secretary |
Exhibit 5(b)
TEMPORARY CERTIFICATE
Exchangeable for Definitive Engraved
Certificate When Ready for Delivery
[GRAPHIC OMITTED]
MuniAssets Fund, Inc.
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND
COMMON STOCK CUSIP 62618Q 10 6 PAR VALUE $.10 SEE REVERSE FOR CERTAIN DEFINITIONS This certifies that |
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK OF
MuniAssets Fund, Inc., transferable on the books of the Corporation by the holder in person or by duly authorized attorney upon surrender of this Certificate properly endorsed. This Certificate and the shares represented hereby are issued and shall be held subject to all of the provisions of the Articles of Incorporation and of the By-Laws of the Corporation, and of all the amendments from time to time made thereto. This Certificate is not valid unless countersigned and registered by the Transfer Agent and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures of its duly authorized officers.
MUNIASSETS FUND, INC.
CORPORATE
SEAL
1993
MARYLAND
Dated: Authorized Signature /s/ Mark B. Goldfus /s/ Arthur Zeikel ------------------------------ ------------------------------ Secretary President |
Countersigned and Registered The Bank of New York By _______________________ Transfer Agent and Registrar |
MuniAssets Fund, Inc.
A full statement of the designations and any preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications and terms and conditions of redemption of the shares of each class and series of stock which the Corporation is authorized to issue and the differences in the relative rights and preferences between the shares of each class and series to the extent that they have been set, and the authority of the Board of Directors to set the relative rights and preferences of subsequent classes and series, will be furnished by the Corporation to any stockholder, without charge, upon request to the Secretary of the Corporation at its principal office.
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- Custodian --------------------- (Cust) (Minor) TEN ENT -- as tenants by the entireties under Uniform Gifts to Minors JT TEN -- as joint tenants with right Act _________________ of survivorship and not as (State) tenants in common |
Additional abbreviations may also be used though not in the above list
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the Certificate, in every particular, without alteration or enlargement, or any change whatever.
For value received ____________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_________________________________________________________________________ Shares represented by the within Certificate and do hereby irrevocably constitute and appoint
Dated: __________________________
X ________________________________
Signatures must be guaranteed by an "eligible guarantor institution" as such term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934.
Exhibit 6
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this 25th day of June, 1993, by and between MUNIASSETS FUND, INC., a Maryland corporation (hereinafter referred to as the "Fund"), and FUND ASSET MANAGEMENT, INC., a Delaware corporation (hereinafter referred to as the "Investment Adviser").
W I T N E S S E T H:
WHEREAS, the Fund is engaged in business as a non-diversified, closed-end management investment company registered under the Investment Company Act of 1940, as amended (hereinafter referred to as the "Investment Company Act"); and
WHEREAS, the Investment Adviser is engaged principally in rendering management and investment advisory services and is registered as an investment adviser under the Investment Advisers Act of l94O; and
WHEREAS, the Fund desires to retain the Investment Adviser to provide management and investment advisory services to the Fund in the manner and on the terms hereinafter set forth; and
WHEREAS, the Investment Adviser is willing to provide management and investment advisory services to the Fund on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the covenants hereinafter contained, the Fund and the Investment Adviser hereby agree as follows:
ARTICLE I
Duties of the Investment Adviser
The Fund hereby employs the Investment Adviser to act as a manager and investment adviser of the Fund and to furnish, or arrange for affiliates to furnish, the management and investment advisory services described below, subject to the policies of, review by and overall control of the Board of Directors of the Fund, for the period and on the terms and conditions set forth in this Agreement. The Investment Adviser hereby accepts such employment and agrees during such period, at its own expense, to render, or arrange for the rendering of, such services and to assume the obligations herein set forth for the compensation provided for herein. The Investment Adviser and its affiliates shall for all purposes herein be deemed to be independent contractors and shall, unless otherwise expressly provided or authorized, have no authority to act for or represent the Fund in any way or otherwise be deemed agents of the Fund.
(a) Investment Advisory Services. The Investment Adviser shall perform (or arrange for the performance by affiliates of) the management, investment advisory and administrative services necessary for the operation of the Fund including administering shareholder accounts and handling shareholder relations. The Investment Adviser shall provide the Fund with office space, facilities, equipment and necessary personnel and such other services as the Investment Adviser, subject to review by the Board of Directors, shall from time to time determine to be necessary or useful to perform its obligations under this Agreement. The
Investment Adviser shall also, on behalf of the Fund, conduct relations with custodians, depositories, transfer agents, pricing agents, dividend disbursing agents, other shareholder servicing agents, accountants, attorneys, underwriters, brokers and dealers, corporate fiduciaries, insurers, banks and such other persons in any such other capacity deemed to be necessary or desirable. The Investment Adviser shall generally monitor the Fund's compliance with investment policies and restrictions as set forth in filings made by the Fund under the Federal securities laws. The Investment Adviser shall make reports to the Board of Directors of its performance of obligations hereunder and furnish advice and recommendations with respect to such other aspects of the business and affairs of the Fund as it shall determine to be desirable.
(b) Investment Advisory Services. The Investment Adviser shall provide (or arrange for affiliates to provide) the Fund with such investment research, advice and supervision as the latter may from time to time consider necessary for the proper supervision of the assets of the Fund, shall furnish continuously an investment program for the Fund and shall determine from time to time which securities shall be purchased, sold or exchanged and what portion of the assets of the Fund shall be held in the various securities in which the Fund invests, options, futures, options on futures or cash, subject always to the restrictions of the Articles of Incorporation and By-Laws of the Fund, as amended from time to time, the provisions of the Investment Company Act and the statements relating to the Fund's investment objectives, investment policies and investment restrictions as the same are set forth in
filings made by the Fund under the Federal securities laws. The Investment Adviser shall make decisions for the Fund as to foreign currency matters and make determinations as to foreign exchange contracts, foreign currency options, foreign currency futures and related options on foreign currency futures. The Investment Adviser shall make decisions for the Fund as to the manner in which voting rights, rights to consent to corporate action and any other rights pertaining to the Fund's portfolio securities shall be exercised. Should the Directors at any time, however, make any definite determination as to investment policy and notify the Investment Adviser thereof in writing, the Investment Adviser shall be bound by such determination for the period, if any, specified in such notice or until similarly notified that such determination has been revoked. The Investment Adviser shall take, on behalf of the Fund, all actions which it deems necessary to implement the investment policies determined as provided above, and in particular to place all orders for the purchase or sale of portfolio securities for the Fund's account with brokers or dealers selected by it, and to that end, the Investment Adviser is authorized as the agent of the Fund to give instructions to the Custodian of the Fund as to deliveries of securities and payments of cash for the account of the Fund. In connection with the selection of such brokers or dealers and the placing of such orders with respect to assets of the Fund, the Investment Adviser is directed at all times to seek to obtain execution and prices within the policy guidelines determined by the Board of Directors and set forth in filings made by the Fund under the Federal securities laws. Subject to this
requirement and the provisions of the Investment Company Act, the Securities Exchange Act of 1934, as amended, and other applicable provisions of law, the Investment Adviser may select brokers or dealers with which it or the Fund is affiliated.
ARTICLE II
Allocation of Charges and Expenses
(a) The Investment Adviser. The Investment Adviser assumes and shall pay for maintaining the staff and personnel necessary to perform its obligations under this Agreement, and shall at its own expense, provide the office space, facilities, equipment and necessary personnel which it is obligated to provide under Article I hereof, and shall pay all compensation of officers and employees of the Fund and all Directors of the Fund who are affiliated persons of the Investment Adviser.
(b) The Fund. The Fund assumes and shall pay or cause to be paid all other expenses of the Fund including, without limitation: organizational costs, taxes, expenses for legal and auditing services, costs of printing proxies, stock certificates, shareholder reports, prospectuses, listing fees, charges of the custodian, any sub-custodian, transfer agent, dividend disbursing agent and registrar, expenses of portfolio transactions, Securities and Exchange Commission fees, expenses of registering the shares under Federal, state and foreign laws, fees and actual out-of-pocket expenses of Directors who are not affiliated persons of the Investment Adviser, accounting and pricing costs (including the weekly calculation of the net asset value), insurance, interest, brokerage costs, litigation and other extraordinary or nonrecurring
expenses, and other expenses properly payable by the Fund. It is also understood that the Fund will reimburse the Investment Adviser for its costs in providing accounting services to the Fund.
ARTICLE III
Compensation of the Investment Adviser
(a) Investment Advisory Fee. For the services rendered, the facilities furnished and expenses assumed by the Investment Adviser, the Fund shall pay to the Investment Adviser at the end of each calendar month a fee based upon the average weekly value of the net assets of the Fund at the annual rate of 0.55% of the Fund's average weekly net assets (i.e., the average weekly value of the total assets of the Fund, minus the sum of accrued liabilities of the Fund), commencing on the day following effectiveness hereof. For purposes of this calculation, average weekly net assets are determined at the end of each month on the basis of the average net assets of the Fund for each week during the month. The assets for each weekly period are determined by averaging the net assets at the last business day of a week with the net assets at the last business day of the prior week. If this Agreement becomes effective subsequent to the first day of a month or shall terminate before the last day of a month, compensation for that part of the month this Agreement is in effect shall be prorated in a manner consistent with the calculation of the fee as set forth above. Payment of the Investment Adviser's compensation for the preceding month shall be made as promptly as possible. During any period when the determination of net asset value is suspended by the Board of Directors, the average net asset value of a share for the last
week prior to such suspension shall for this purpose be deemed to be the net asset value at the close of each succeeding week until it is again determined.
ARTICLE IV
Limitation of Liability of the Investment Adviser
The Investment Adviser shall not be liable for any error of judgment or mistake of law or for any loss arising out of any investment or for any act or omission in the management of the Fund, except for willful misfeasance, bad faith or gross negligence in the performance of its duties, or by reason of reckless disregard of its obligations and duties hereunder. As used in this Article IV, the term "Investment Adviser" shall include any affiliates of the Investment Adviser performing services for the Fund contemplated hereby and directors, officers and employees of the Investment Adviser and such affiliates.
ARTICLE V
Activities of the Investment Adviser
The services of the Investment Adviser to the Fund are not to be deemed to be exclusive: the Investment Adviser and any person controlled by or under common control with the Investment Adviser (for purposes of this Article V referred to as "affiliates") are free to render services to others. It is understood that Directors, officers, employees and shareholders of the Fund are or may become interested in the Investment Adviser and its affiliates, as directors, officers, employees, partners and shareholders or otherwise, and that directors, officers, employees, partners and shareholders of the Investment Adviser and its
affiliates are or may become similarly interested in the Fund, and that the Investment Adviser and directors, officers, employees, partners and shareholders of its affiliates may become interested in the Fund as a shareholder or otherwise.
ARTICLE VI
Duration and Termination of this Agreement
This Agreement shall become effective as of the date first above written and shall remain in force until June 18, 1995 and thereafter, but only so long as such continuance is specifically approved at least annually by (i) the Board of Directors of the Fund, or by the vote of a majority of the outstanding voting securities of the Fund, and (ii) a majority of those Directors who are not parties to this Agreement or interested persons of any such party cast in person at a meeting called for the purpose of voting on such approval.
This Agreement may be terminated at any time, without the payment of any penalty, by the Board of Directors or by vote of a majority of the outstanding voting securities of the Fund, or by the Investment Adviser, on sixty days' written notice to the other party. This Agreement shall automatically terminate in the event of its assignment.
ARTICLE VII
Amendment of this Agreement
This Agreement may be amended by the parties only if such amendment is specifically approved by (i) the vote of a majority of outstanding voting securities of the Fund, and (ii) a majority of those Directors who are not parties to this Agreement or interested persons of any such party cast in person at a meeting called for the purpose of voting on such approval.
ARTICLE VIII
Definitions of Certain Terms
The terms "vote of a majority of the outstanding voting securities," "assignment," "affiliated person" and "interested person," when used in this Agreement, shall have the respective meanings specified in the Investment Company Act and the rules and regulations thereunder, subject, however, to such exemptions as may be granted by the Securities and Exchange Commission under said Act.
ARTICLE IX
Governing Law
This Agreement shall be construed in accordance with laws of the State of New York and the applicable provisions of the Investment Company Act. To the extent that the applicable laws of the State of New York, or any of the provisions herein, conflict with the applicable provisions of the Investment Company Act, the latter shall control.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.
MUNIASSETS FUND, INC.
By /s/ Mark B. Goldfus ---------------------------- (Authorized Signatory) |
FUND ASSET MANAGEMENT, INC.
By /s/ Mark B. Goldfus ---------------------------- (Authorized Signatory) |
Exhibit 7(a) 6,700,000 Shares
MuniAssets Fund, Inc.
(a Maryland corporation)
Common Stock
(Par Value $0.10 Per Share)
PURCHASE AGREEMENT
June ___, 1993
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
Merrill Lynch World Headquarters
World Financial Center
North Tower
New York, NY 10281-1305
Dear Sirs:
MuniAssets Fund, Inc., a Maryland corporation (the "Fund"), and Fund Asset Management, Inc., a Delaware corporation (the "Adviser"), each confirms its agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (the "Underwriter"), with respect to the sale by the Fund and the purchase by the Underwriter of 6,700,000 shares of common stock, par value $.10 per share, of the Fund (the "Common Stock") and, with respect to the grant by the Fund to the Underwriter of the option described in Section 2 hereof to purchase all or any part of 1,005,000 additional shares of Common Stock to cover over-allotments. The aforesaid 6,700,000 shares (the "Initial Shares"), together with all or any part of the 1,005,000 additional shares of Common Stock subject to the option described in Section 2 hereof (the "Option Shares"), are collectively hereinafter called the "Shares."
Prior to the purchase and public offering of the Shares by the Underwriter, the Fund and the Underwriter shall enter into an agreement substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The Pricing Agreement may take the form of an exchange of any standard form of written telecommunication between the Fund and the Underwriter and shall specify such applicable information as is indicated in Exhibit A hereto. The offering of the Shares will be governed by this Agreement, as supplemented by the Pricing Agreement. From and after the date of the execution and delivery of the Pricing Agreement, this Agreement shall be deemed to incorporate the Pricing Agreement.
The Fund has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form N-2 (No. 33-61150) and a related preliminary prospectus for the registration of the Shares under the Securities Act of 1933, as amended (the "1933 Act"), and a notification on Form N-8A of registration of the Fund as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act"), and the rules and regulations of the Commission under the 1940 Act (together with the rules and regulations under the 1933 Act, the "Rules and Regulations") and has filed such amendments to such registration statement on Form N-2, if any, and such amended preliminary prospectuses as may have been required to the date hereof. The Fund will prepare and file such additional amendments thereto and such amended prospectuses as may hereafter be required. Such registration statement (as amended, if applicable) and the prospectus constituting a part thereof (including in each case the information, if any, deemed to be part thereof pursuant to Rule 430A(b) of the Rules and Regulations), as from time to time amended or supplemented pursuant to the 1933 Act, are hereinafter referred to as the "Registration Statement" and the "Prospectus," respectively, except that if any revised prospectus shall be provided to the Underwriter by the Fund for use in connection with the offering of the Shares which differs from the Prospectus on file at the Commission at the time the Registration Statement becomes effective (whether such revised prospectus is required to be filed by the Fund pursuant to Rule 497(b) or Rule 497(h) of the Rules and Regulations), the term "Prospectus" shall refer to each such revised prospectus from and after the time it is first provided to the Underwriter for such use.
The Fund understands that the Underwriter proposes to make a public offering of the Shares as soon as the Underwriter deems advisable after the Registration Statement becomes effective and the Pricing Agreement has been executed and delivered.
SECTION 1. Representations and Warranties. (a) The Fund and the Adviser each severally represents and warrants to the Underwriter as of the date hereof and as of the date of the Pricing Agreement (such later date being hereinafter referred to as the "Representation Date") as follows:
(i) At the time the Registration Statement becomes effective and at the Representation Date, the Registration Statement will comply in all material respects with the requirements of the 1933 Act, the 1940 Act and the Rules and Regulations and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. At the time the Registration Statement becomes effective, at the Representation Date and at Closing Time referred to in Section 2, the Prospectus (unless the term "Prospectus" refers to a prospectus which has been provided to the Underwriter by the Fund for use in connection with the offering of the Shares which differs from the
Prospectus on file with the Commission at the time the Registration Statement becomes effective, in which case at the time such prospectus is first provided to the Underwriter for such use) will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Fund in writing by the Underwriter expressly for use in the Registration Statement or Prospectus.
(ii) The accountants who certified the statement of assets and liabilities included in the Registration Statement are independent public accountants as required by the 1933 Act and the Rules and Regulations.
(iii) The statement of assets and liabilities included in the Registration Statement presents fairly the financial position of the Fund as at the date indicated and said statement has been prepared in conformity with generally accepted accounting principles.
(iv) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in the condition, financial or otherwise, of the Fund, or in the earnings, business affairs or business prospects of the Fund, whether or not arising in the ordinary course of business, (B) there have been no transactions entered into by the Fund which are material to the Fund other than those in the ordinary course of business, and (C) there has been no dividend or distribution of any kind declared, paid or made by the Fund on any class of its capital stock.
(v) The Fund has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland with corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement; the Fund is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required; and the Fund has no subsidiaries.
(vi) The Fund is registered with the Commission under the 1940 Act as a closed-end, non-diversified management investment company, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or threatened by the Commission.
(vii) The authorized, issued and outstanding capital stock of the Fund is as set forth in the Prospectus under the caption "Description of Capital Stock"; the Shares have been duly authorized for issuance and sale to the Underwriter pursuant to this Agreement and, when issued and delivered by the Fund pursuant to this Agreement against payment of the consideration set forth in the Pricing Agreement, will be validly issued and fully paid and nonassessable; the Shares conform in all material respects to all statements relating thereto contained in the Registration Statement; and the issuance of the Shares is not subject to preemptive rights.
(viii) The Fund is not in violation of its articles of incorporation, as amended (the "Charter") or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its properties may be bound; and the execution and delivery of this Agreement, the Pricing Agreement and the Investment Advisory Agreement and the Custodial Agreement referred to in the Registration Statement (as used herein, the "Advisory Agreement" and the "Custody Agreement," respectively) and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary corporate action and will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Fund is a party or by which it may be bound or to which any of the property or assets of the Fund is subject, nor will such action result in any violation of the provisions of the Charter or by-laws, as amended, of the Fund (the "By-Laws") or, to the best knowledge of the Fund and the Adviser, any law, administrative regulation or administrative or court decree; and no consent, approval, authorization or order of any court or governmental authority or agency is required for the consummation by the Fund of the transactions contemplated by this Agreement, the Pricing Agreement, the Advisory Agreement and the Custody Agreement, except such as has been obtained under the 1940 Act or as may be required under the 1933 Act, state securities or Blue Sky laws or foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriter.
(ix) The Fund owns or possesses or has obtained all material governmental licenses, permits, consents, orders, approvals and other authorizations necessary to lease or own, as the case may be, and to operate its properties and to carry on its businesses as contemplated in the Prospectus.
(x) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Fund, threatened against or affecting, the Fund, which might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund, or might materially and adversely affect the properties or assets of the Fund; and there are no material contracts or documents of the Fund which are required to be filed as exhibits to the Registration Statement by the 1933 Act, the 1940 Act or by the Rules and Regulations which have not been so filed.
(xi) The Fund owns or possesses, or can acquire on reasonable terms, adequate trademarks, service marks and trade names necessary to conduct its business as described in the Registration Statement, and the Fund has not received any notice of infringement of or conflict with asserted rights of others with respect to any trademarks, service marks or trade names which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the conduct of the business, operations, financial condition or income of the Fund.
(xii) The Shares have been approved for listing on the New York Stock Exchange upon notice of issuance.
(b) The Adviser represents and warrants to the Underwriter as of the date hereof and as of the Representation Date as follows:
(i) The Adviser has been duly incorporated as a corporation under the laws of the State of Delaware with corporate power and authority to conduct its business as described in the Prospectus.
(ii) The Adviser is duly registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the "Advisers Act"), and is not prohibited by the Advisers Act or the 1940 Act, or the rules and regulations under such acts, from acting under the Advisory Agreement for the Fund as contemplated by the Prospectus.
(iii) This Agreement has been duly authorized, executed and delivered by the Adviser; the Advisory Agreement has been duly authorized, executed and delivered by the Adviser and constitutes a valid and binding obligation of the Adviser, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors' rights and to general equity principles; and neither the execution and delivery of this Agreement, or the Advisory Agreement nor the performance by the Adviser of its obligations hereunder or thereunder will conflict with, or result in a breach of any of
the terms and provisions of, or constitute, with or without the giving of notice or lapse of time or both, a default under, any agreement or instrument to which the Adviser is a party or by which it is bound, or any law, order, rule or regulation applicable to it of any jurisdiction, court, federal or state regulatory body, administrative agency or other governmental body, stock exchange or securities association having jurisdiction over the Adviser or its respective properties or operations.
(iv) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus.
(v) Any advertisement approved by the Adviser for use in the public offering of the Shares pursuant to Rule 482 under the Rules and Regulations (an "Omitting Prospectus") complies with the requirements of such Rule 482.
(c) Any certificate signed by any officer of the Fund or the Adviser and delivered to the Underwriter shall be deemed a representation and warranty by the Fund or the Adviser, as the case may be, to the Underwriter, as to the matters covered thereby.
SECTION 2. Sale and Delivery to the Underwriter; Closing. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Fund agrees to sell the Initial Shares to the Underwriter, and the Underwriter agrees to purchase the Initial Shares from the Fund, at the price per share set forth in the Pricing Agreement.
(a) If the Fund has elected not to rely upon Rule 430A under the Rules and Regulations, the initial public offering prices and the purchase price per share to be paid by the Underwriter for the Shares has been determined and set forth in the Pricing Agreement, dated the date hereof, and an amendment to the Registration Statement and the Prospectus will be filed before the Registration Statement becomes effective.
(b) If the Fund has elected to rely upon Rule 430A under the Rules and Regulations, the purchase price per share to be paid by the Underwriter for the Shares shall be an amount equal to the applicable initial public offering price, less an amount per share to be determined by agreement between the Underwriter and the Fund. The applicable initial public offering price per share shall be a fixed price based upon the number of Shares purchased in a single transaction to be determined by agreement between the Underwriter and the Fund. The initial public offering prices and the purchase price, when so determined, shall be set forth in the Pricing Agreement. In the event that such prices have not been agreed upon and the Pricing Agreement has not been executed and delivered by all parties thereto by the close of business on the fourth business day following the date of this Agreement, this Agreement shall terminate forthwith, without liability of any party to any other
party, except as provided in Section 4, unless otherwise agreed to by the Fund, the Adviser and the Underwriter.
In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Fund hereby grants an option to the Underwriter to purchase all or any part of the Option Shares at the price per share set forth above. The option hereby granted will expire 45 days after the date hereof (or, if the Fund has elected to rely upon Rule 430A under the Rules and Regulations, 45 days after the execution of the Pricing Agreement) and may be exercised only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Shares upon notice by the Underwriter to the Fund setting forth the number of Option Shares as to which the Underwriter is then exercising the option and the time, date and place of payment and delivery for such Option Shares. Any such time and date of delivery (a "Date of Delivery") shall be determined by the Underwriter but shall not be later than seven full business days after the exercise of said option, nor in any event prior to Closing Time, as hereinafter defined, unless otherwise agreed upon by the Underwriter and the Fund.
Payment of the purchase price for, and delivery of certificates for, the Initial Shares shall be made at the office of Rogers & Wells, 200 Park Avenue, New York, New York 10166, or at such other place as shall be agreed upon by the Underwriter and the Fund, at 10:00 A.M. on the fifth business day following the date the Registration Statement becomes effective (or, if the Fund has elected to rely upon Rule 430A under the Rules and Regulations, the fifth business day after execution of the Pricing Agreement), or such other time not later than ten business days after such date as shall be agreed upon by the Underwriter and the Fund (such time and date of payment and delivery being herein called "Closing Time"). In addition, in the event that any or all of the Option Shares are purchased by the Underwriter, payment of the purchase price for, and delivery of certificates for, such Option Shares shall be made at the above-mentioned office of Rogers & Wells, or at such other place as shall be mutually agreed upon by the Fund and the Underwriter, on each Date of Delivery as specified in the notice from the Underwriter to the Fund. Payment shall be made to the Fund by check or checks drawn in New York Clearing House or similar next day funds and payable to the order of the Fund, against delivery to the Underwriter of certificates for the Shares to be purchased by it. Certificates for the Initial Shares and Option Shares shall be in such denominations and registered in such names as the Underwriter may request in writing at least two business days before Closing Time or the Date of Delivery, as the case may be. The certificates for the Initial Shares and the Option Shares will be made available by the Fund for examination and packaging by the Underwriter not later than 10:00 A.M. on the last business day prior to Closing Time or the Date of Delivery, as the case may be.
SECTION 3. Covenants of the Fund. The Fund covenants with the Underwriter as follows:
(a) The Fund will use its best efforts to cause the Registration Statement to become effective under the 1933 Act, and will advise the Underwriter promptly as to the time at which the Registration Statement and any amendments thereto (including any post-effective amendment) becomes so effective and, if required, to cause the issuance of any orders exempting the Fund from any provisions of the 1940 Act and will advise the Underwriter promptly as to the time at which any such orders are granted.
(b) The Fund will notify the Underwriter immediately, and confirm the notice in writing, (i) of the effectiveness of the Registration Statement and any amendment thereto (including any post-effective amendment), (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, and (v) of the issuance by the Commission of an order of suspension or revocation of the notification on Form N-8A of registration of the Fund as an Investment Company under the 1940 Act or the initiation of any proceeding for that purpose. The Fund will make every reasonable effort to prevent the issuance of any stop order described in subsection (iv) hereunder or any order of suspension or revocation described in subsection (v) hereunder and, if any such stop order or order of suspension or revocation is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Fund will give the Underwriter notice of its intention to file any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Fund proposes for use by the Underwriter in connection with the offering of the Shares, which differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether such revised prospectus is required to be filed pursuant to Rule 497(b) or Rule 497(h) of the Rules and Regulations), whether pursuant to the 1940 Act, the 1933 Act, or otherwise, and will furnish the Underwriter with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement to which the Underwriter shall reasonably object.
(d) The Fund will deliver to the Underwriter, as soon as practicable, two signed copies of the notification of registration and registration statement as originally filed and of each amendment thereto, in each case with two sets of the exhibits filed therewith, and will also deliver to the Underwriter a conformed copy of the registration statement as originally filed and of each
amendment thereto (but without exhibits to the registration statement or any such amendment).
(e) The Fund will furnish to the Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as the Underwriter may reasonably request for the purposes contemplated by the 1933 Act or the Rules and Regulations.
(f) If any event shall occur as a result of which it is necessary, in the opinion of counsel for the Underwriter, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Fund will forthwith amend or supplement the Prospectus by preparing and furnishing to the Underwriter a reasonable number of copies of an amendment or amendments of or a supplement or supplements to, the Prospectus (in form and substance satisfactory to counsel for the Underwriter), so that, as so amended or supplemented, the Prospectus will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading.
(g) The Fund will endeavor, in cooperation with the Underwriter, to qualify the Shares for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriter may designate, and will maintain such qualifications in effect for a period of not less than one year after the date hereof. The Fund will file such statements and reports as may be required by the laws of each jurisdiction in which the Shares have been qualified as above provided.
(h) The Fund will make generally available to its securityholders as soon as practicable, but no later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the Rules and Regulations) covering a twelve-month period beginning not later than the first day of the Funds's fiscal quarter next following the "effective" date (as defined in said Rule 158) of the Registration Statement.
(i) Between the date of this Agreement and the termination of any trading restrictions or Closing Time, whichever is later, the Fund will not, without your prior consent, offer or sell, or enter into any agreement to sell, any equity or equity related securities of the Fund other than the Shares and shares of Common stock issued in reinvestment of dividends or distributions.
(j) If, at the time that the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A of the Rules and Regulations,
then immediately following the execution of the Pricing Agreement, the Fund will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 497(h) of the Rules and Regulations, copies of the amended Prospectus, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus), containing all information so omitted.
(k) Trading of the Shares on the New York Stock Exchange will begin no later than four weeks from the date of the Prospectus.
SECTION 4. Payment of Expenses. The Fund will pay all expenses incidental
to the performance of its obligations under this Agreement, including, but not
limited to, expenses relating to (i) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto, (ii) the printing
of this Agreement and the Pricing Agreement, (iii) the preparation, issuance and
delivery of the certificates for the Shares to the Underwriter, (iv) the fees
and disbursements of the Fund's counsel and accountants, (v) the qualification
of the Shares under securities laws in accordance with the provisions of Section
3(g) of this Agreement, including filing fees and any reasonable fees or
disbursements of counsel for the Underwriter in connection therewith and in
connection with the preparation of the blue sky survey, (vi) the printing and
delivery to the Underwriter of copies of the registration statement as
originally filed and of each amendment thereto, of the preliminary prospectus,
and of the Prospectus and any amendments or supplements thereto, (vii) the
printing and delivery to the Underwriter of copies of the blue sky survey,
(viii) the fees and expenses incurred with respect to the filing with the
National Association of Securities Dealers, Inc. and (ix) the fees and expenses
incurred with respect to the listing of the Shares on the New York Stock
Exchange.
If this Agreement is terminated by the Underwriter in accordance with the provisions of Section 5 or Section 9 (a) (i), the Fund or the Adviser shall reimburse the Underwriter for all of its reasonable out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriter. In the event the transactions contemplated hereunder are not consummated, the Adviser agrees to pay all of the costs and expenses set forth in the first paragraph of this Section 4 which the Fund would have paid if such transactions were consummated.
SECTION 5. Conditions of Underwriter's Obligations. The obligations of the Underwriter hereunder are subject to the accuracy of the representations and warranties of the Fund and the Adviser herein contained, to the performance by the Fund and the Adviser of their respective obligations hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective not later than 5:30 P.M., New York City time, on the date
of this Agreement, or at a later time and date not later, however, than 5:30 P.M. on the first business day following the date hereof, or at such later time and date as may be approved by the Underwriter, and at Closing Time no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission. If the Fund has elected to rely upon Rule 430A of the Rules and Regulations, the prices of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 497(h) of the Rules and Regulations within the prescribed time period, and prior to Closing Time the Fund shall have provided evidence satisfactory to the Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) At Closing Time, the Underwriter shall have received:
(1) The favorable opinion, dated as of Closing Time, of Rogers & Wells, counsel for the Fund and the Underwriter, to the effect that:
(i) The Fund has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland.
(ii) The Fund has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and the Prospectus.
(iii) The Fund is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required.
(iv) The Shares have been duly authorized for issuance and sale to the Underwriter pursuant to this Agreement and, when issued and delivered by the Fund pursuant to this Agreement against payment of the consideration set forth in the Pricing Agreement, will be validly issued and fully paid and nonassessable; the issuance of the Shares is not subject to preemptive rights; and the authorized capital stock conforms as to legal matters in all material respects to the description thereof in the Registration Statement under the caption "Description of Capital Stock."
(v) This Agreement and the Pricing Agreement each have been duly authorized, executed and delivered by the Fund and each complies with all applicable provisions of the 1940 Act.
(vi) The Registration Statement is effective under the 1933 Act and, to the best of their knowledge and information, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission.
(vii) At the time the Registration Statement became effective and at the Representation Date, the Registration Statement (other than the financial statements included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1940 Act and the Rules and Regulations.
(viii) To the best of their knowledge and information, there are no legal or governmental proceedings pending or threatened against the Fund which are required to be disclosed in the Registration Statement, other than those disclosed therein.
(ix) To the best of their knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments of the Fund required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto, the descriptions thereof are correct in all material respects, and no default exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument so described, referred to or filed.
(x) No consent, approval, authorization or order of any court or governmental authority or agency is required in connection with the sale of the Shares to the Underwriter, except such as has been obtained under the 1933 Act, the 1940 Act or the Rules and Regulations or such as may be required under state or foreign securities laws; and to the best of their knowledge and information, the execution and delivery of this Agreement, the Pricing Agreement, the Advisory Agreement and the Custody Agreement and the consummation of the transactions contemplated herein and therein will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Fund is a party or by which it may be bound or to which any of the property or assets of the Fund is subject, nor will such action result in any violation of the provisions of the Charter or By-Laws of the Fund, or any law or administrative
regulation, or, to the best of their knowledge and information, administrative or court decree.
(xi) The Advisory Agreement and the Custody Agreement have each been duly authorized and approved by the Fund and comply as to form in all material respects with all applicable provisions of the 1940 Act, and both have been duly executed by the Fund.
(xii) The Fund is registered with the Commission under the 1940 Act as a closed-end nondiversified management investment company, and all required action has been taken by the Fund under the 1933 Act, the 1940 Act and the Rules and Regulations to make the public offering and consummate the sale of the Shares pursuant to this Agreement; the provisions of the Charter and By-Laws of the Fund comply as to form in all material respects with the requirements of the 1940 Act; and, to the best of their knowledge and information, no order of suspension or revocation of such registration under the 1940 Act, pursuant to Section 8(e) of the 1940 Act, has been issued or proceedings therefor initiated or threatened by the Commission.
(xiii) The information in the Prospectus under the caption "Taxes," to the extent that it constitutes matters of law or legal conclusions, has been reviewed by them and is correct in all material respects.
(2) The favorable opinion, dated as of Closing Time, of Philip L. Kirstein, Esq., General Counsel to the Adviser, in form and substance satisfactory to counsel for the Underwriter, to the effect that:
(i) The Adviser has been duly organized as a corporation under the laws of the State of Delaware with corporate power and authority to conduct its business as described in the Registration Statement and the Prospectus.
(ii) The Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act, or the rules and regulations under such Acts, from acting under the Advisory Agreement for the Fund as contemplated by the Prospectus.
(iii) This Agreement and the Advisory Agreement have been duly authorized, executed and delivered by the Adviser, and the Advisory Agreement constitutes a valid and binding obligation of the Adviser, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors' rights and to general equity principles; and, to the best of his knowledge and information, neither the execution and delivery of this Agreement or the Advisory
Agreement nor the performance by the Adviser of its obligations hereunder or thereunder will conflict with, or result in a breach of, any of the terms and provisions of, or constitute, with or without giving notice or lapse of time or both, a default under, any agreement or instrument to which the Adviser is a party or by which the Adviser is bound, or any law, order, rule or regulation applicable to the Adviser of any jurisdiction, court, federal or state regulatory body, administrative agency or other governmental body, stock exchange or securities association having jurisdiction over the Adviser or its properties or operations.
(iv) To the best of his knowledge and information, the description of the Adviser in the Registration Statement and the Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(3) In addition to providing the opinion required by subsection (b) (1) of
this Section, Rogers & Wells shall also state that nothing has come to their
attention that would lead them to believe that the Registration Statement on the
date it became effective or at the Representation Date, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
that the Prospectus, as of the date the Registration Statement became effective,
at the Representation Date (unless the term "Prospectus" refers to a prospectus
which has been provided to the Underwriter by the Fund for use in connection
with the offering of the Shares which differs from the Prospectus on file at the
Commission at the time the Registration Statement becomes effective, in which
case at the time they are first provided to the Underwriter for such use) or at
Closing Time, contained or contain any untrue statement of a material fact or
omitted or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. In making such statement, Rogers & Wells may state that the
limitations inherent in the independent verification of factual matters and the
character of determinations involved in the registration process are such,
however, that it does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and Prospectus, except to the limited extent stated in paragraph b(l)
(xiii) above. In addition, it does not express any opinion or belief as to the
financial statements contained in the Registration Statement or the Prospectus
and understands that the Underwriters are relying upon Deloitte & Touche,
certified public accountants, as to the form and content of financial statements
contained in the Registration Statement and Prospectus. In giving their opinion,
Rogers & Wells may rely as to matters involving the laws of the State of
Maryland upon the opinion of Ginsburg, Feldman and Bress, Chartered. Ginsburg,
Feldman and Bress, Chartered and Rogers & Wells may rely, as to matters of fact,
upon certificates
and written statements of officers and employees of and accountants for the Fund and the Adviser and of public officials.
(c) At Closing Time, (i) the Registration Statement and the Prospectus
shall contain all statements which are required to be stated therein in
accordance with the 1933 Act, the 1940 Act and the Rules and Regulations and in
all material respects shall conform to the requirements of the 1933 Act, the
1940 Act and the Rules and Regulations and the Prospectus shall not contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, and no action, suit or proceeding at law or in
equity shall be pending or, to the knowledge of the Fund or the Adviser,
threatened against the Fund or the Adviser which would be required to be set
forth in the Prospectus other than as set forth therein, (ii) there shall not
have been, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition, financial or otherwise, of the Fund or in its earnings, business
affairs or business prospects, whether or not arising in the ordinary course of
business, from that set forth in the Registration Statement and Prospectus,
(iii) the Adviser shall have the financial resources available to it necessary
for the performance of its services and obligations as contemplated in the
Registration Statement and the Prospectus and (iv) no proceedings shall be
pending or, to the knowledge of the Fund or the Adviser, threatened against the
Fund or the Adviser before or by any federal, state or other commission, board
or administrative agency wherein an unfavorable decision, ruling or finding
would materially and adversely affect the business, property, financial
condition or income of either the Fund or the Adviser other than as set forth in
the Registration Statement and the Prospectus; and the Underwriter shall have
received, at Closing Time, a certificate of the President or Treasurer of the
Fund and of the President or a Vice President of the Adviser dated as of Closing
Time, evidencing compliance with the appropriate provisions of this subsection
(c).
(d) At Closing Time, the Underwriter shall have received certificates, dated as of Closing Time, (i) of the President or Treasurer of the Fund to the effect that the representations and warranties of the Fund contained in Section 1(a) and (b) are true and correct with the same force and effect as though expressly made at and as of Closing Time, and (ii) of the President or a Vice President of the Adviser to the effect that the representations and warranties of the Adviser contained in Sections 1(a) and (b) are true and correct with the same force and effect as though expressly made at and as of Closing Time.
(e) At the time of execution of this Agreement, the Underwriter shall have received from Deloitte & Touche a letter, dated such date in form and substance satisfactory to the Underwriter, to the effect that:
(i) they are independent accountants with respect to the Fund within the meaning of the 1933 Act and the Rules and Regulations;
(ii) in their opinion, the statement of assets and liabilities examined by them and included in the Registration Statement complies as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1940 Act and the Rules and Regulations; and
(iii) they have performed specified procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Fund, a reading of the minute books of the Fund, inquiries of officials of the Fund responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such inquiries and procedures nothing came to their attention that caused them to believe that at the date of the latest available statement of assets and liabilities read by such accountants, or at a subsequent specified date not more than five days prior to the date of this Agreement, there was any change in the capital stock or net assets of the Fund as compared with amounts shown on the statement of net assets included in the Prospectus.
(f) At Closing Time, the Underwriter shall have received from Deloitte & Touche a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the "specified date" referred to shall be a date not more than five days prior to Closing Time.
(g) At Closing Time, all proceedings taken by the Fund and the Adviser in connection with the organization and registration of the Fund under the 1940 Act and the issuance and sale of the Shares as herein and therein contemplated shall be satisfactory in form and substance to the Underwriter.
(h) In the event the Underwriter exercises its option provided in section 2 hereof to purchase all or any portion of the Option Shares, the representations and warranties of the Fund and the Adviser contained herein and the statements in any certificate furnished by the Fund and the Adviser hereunder shall be true and correct as of each Date of Delivery, and the Underwriter shall have received:
(1) certificates, dated the Date of Delivery, of the President or
Treasurer of the Fund and of the President or a Vice President of the
Adviser confirming that the information contained in the certificate
delivered by each of them at Closing Time pursuant to Sections 5(c) and
(d), as the case may be, remains true as of such Date of Delivery;
(2) the favorable opinion of Rogers & Wells, counsel for the Fund and Philip L. Kirstein, Esq., General Counsel to the Adviser, each in form and substance satisfactory to the Underwriter, dated such Date of Delivery, relating to the Option Shares and otherwise to the same effect as the opinions required by Sections 5(b)(1) and (2), respectively; and
(3) a letter from Deloitte & Touche, in form and substance satisfactory to the Underwriter and dated such Date of Delivery, substantially the same in scope and substance as the letter furnished to the Underwriter pursuant to Section 5(e), except that the "specified date" in the letter furnished pursuant to this Section 5(h)(3) shall be a date not more than five days prior to such Date of Delivery.
If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Underwriter by notice to the Fund at any time at or prior to Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 4.
SECTION 6. Indemnification. (a) The Fund and the Adviser, jointly and severally, agree to indemnify and hold harmless the Underwriter and each person, if any, who controls the Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including the information deemed to be part of the Registration Statement pursuant to Rule 430A of the Rules and Regulations, if applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever as incurred to the extent of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the indemnifying party; and
(iii) against any and all expense whatsoever (including the fees and disbursements of counsel chosen by the Underwriter) reasonably incurred in investigating, preparing or defending against any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Fund by the Underwriter expressly for use in the Registration Statement (or any amendment thereto) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(b) The Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Fund and the Adviser, their respective directors, each of the Fund's officers who signed the Registration Statement, and each person, if any, who controls the Fund or the Adviser within the meaning of Section 15 of the 1933 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Fund by the Underwriter expressly for use in the Registration Statement (or any amendment thereto) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In addition to the foregoing indemnification, the Adviser also agrees to indemnify and hold harmless the Underwriter and each Person, if any, who controls the Underwriter within the meaning of Section 15 of the 1933 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, with respect to any Omitting Prospectus or any advertising materials approved by the Adviser for use in connection with the public offering of the Shares.
(d) Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate at its own expense in the defense of any such action. In no event shall the indemnifying parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Fund, the Adviser and the
Underwriter shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement as
incurred by the Fund, the Adviser and the Underwriter, as incurred, in such
proportion that the Underwriter is responsible for that portion represented by
the percentage that the aggregate underwriting compensation payable pursuant to
Section 2 hereof bears to the aggregate initial public offering price of the
Shares sold under this Agreement and the Fund and the Adviser are responsible
for the balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls the Underwriter within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as the Underwriter, and each director of
the Fund and the Adviser, respectively, each officer of the Fund who signed the
Registration Statement, and each person, if any, who controls the Fund or the
Adviser within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Fund and the Adviser, respectively.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement or the Pricing Agreement, or contained in certificates of officers of the Fund or the Adviser submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of the Underwriter or controlling person, or by or on behalf of the Fund or the Adviser and shall survive delivery of the Shares to the Underwriter.
SECTION 9. Termination of Agreement. (a) The Underwriter, by notice to the Fund, may terminate this Agreement at any time at or prior to Closing Time (i) if there has been, since the date of this Agreement or since the respective dates as of which information is given in the Registration Statement, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Fund or the Adviser, whether or not arising in the ordinary course
of business, or (ii) if there has occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or other calamity or crisis or any escalation of existing hostilities the effect of which is such as to make it, in the Underwriter's judgment, impracticable to market the Shares or enforce contracts for the sale of the Shares, or (iii) if trading in the Common Stock has been suspended by the Commission or if trading generally on either the American Stock Exchange or the New York Stock Exchange has been suspended, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required, by either of said exchanges or by order of the Commission or any other governmental authority, or if a banking moratorium has been declared by Federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in Section 4.
SECTION 10. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of written telecommunication. Notices to the Underwriter shall be directed to Merrill Lynch World Headquarters, North Tower, World Financial Center, New York, New York 10281, Attention: _________, Director; notices to the Fund or the Adviser shall be directed to each of them at 800 Scudders Mill Road, Plainsboro, New Jersey 08536, Attention: Arthur Zeikel, President.
SECTION 11. Parties. This Agreement and the Pricing Agreement shall inure to the benefit of and be binding upon the Underwriter, the Fund, the Adviser and their respective successors. Nothing expressed or mentioned in this Agreement or the Pricing Agreement is intended or shall be construed to give any person, firm or corporation, other than the parties hereto and their respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and the Pricing Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the parties hereto and thereto and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Shares from the Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 12. Governing Law and Time. This Agreement and the Pricing Agreement shall be governed by the laws of the State of New York applicable to agreements made and to be performed in said State. Specified times of day refer to New York City time.
If the foregoing is in accordance with your understanding of our Agreement, please sign and return to us a counterpart hereof, whereupon this instrument, along with all counterparts, will become a single binding agreement among the Underwriter, the Fund and the Adviser in accordance with its terms.
Very truly yours,
MUNIASSETS FUND, INC.
By:__________________________________
(Authorized Officer)
FUND ASSET MANAGEMENT, INC.
By:__________________________________
(Authorized Officer)
Confirmed and Accepted,
as of the date first above
written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:_______________________________________
Vice President
Investment Banking Group
Exhibit A
6,700,000 Shares
MuniAssets Fund, Inc
(a Maryland corporation)
Common Stock
(Par Value $.l0 Per Share)
PRICING AGREEMENT
June __, 1993
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281
Dear Sirs:
Reference is made to the Purchase Agreement, dated June ___, 1993 (the "Purchase Agreement"), relating to the purchase by Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (the "Underwriter"), of the above shares of Common Stock par value $.10 per share (the "Initial Shares"), of MuniAssets Fund, Inc. (the "Fund") and relating to the option granted to the Underwriter to purchase up to an additional 1,005,000 shares of Common Stock, par value $.10 per share, of the Fund to cover over-allotments in connection with the sale of the Initial Shares (the "Option Shares"). The Initial Shares and all or any part of the Option Shares are collectively herein referred to as the "Shares."
Pursuant to Section 2 of the Purchase Agreement, the Fund agrees with the Underwriter as follows:
1. The applicable initial public offering price per share for the Shares, determined as provided in said Section 2 shall be as follows:
(a) $15.00 for purchases in single transactions of less than 3,500 Shares;
(b) $14.85 for purchase in single transactions of 3,500 or more Shares but less than 7,000 Shares; and
(c) $14.70 for purchases in single transactions of 7,000 or more Shares.
2. The purchase price per share for the Shares to be paid by the Underwriter shall be $_________ being an amount equal to the applicable initial public offering price set forth above less (i) $_____ per share for purchases in single transactions of less than 3,500 Shares; (ii) $_____ per share for purchases in single transactions of 3,500 or more Shares but less than 7,000 Shares and (iii) $_____ per share for purchases in single transactions of 7,000 or more Shares.
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Fund a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Underwriter and the Fund in accordance with its terms.
Very truly yours,
MUNIASSETS FUND, INC.
By:_____________________________
(Authorized Officer)
Confirmed and Accepted, as
of the date first above
written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:_______________________________________
Vice President
Investment Banking Group
Exhibit 7(b)
Revised October 29, 1990
[LOGO] Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, N.Y. 10281-1305
STANDARD DEALER AGREEMENT
Dear Sirs:
In connection with public offerings of securities underwritten by us, or by a group of underwriters (the "Underwriters") represented by us, you may be offered the opportunity to purchase a portion of such securities, as principal, at a discount from the offering price representing a selling concession or reallowance granted as consideration for services rendered by you in the sale of such securities. We request that you agree to the following terms and provisions, and make the following representations, which, together with any additional terms and provisions set forth in any wire or letter sent to you in connection with a particular offering, will govern all such purchases of securities and the reoffering thereof by you.
Your subscription to, or purchase of, such securities will constitute your reaffirmation of this Agreement.
1. When we are acting as representative (the "Representative") of the Underwriters in offering securities to you, it should be understood that all offers are made subject to prior sale of the subject securities, when, as and if such securities are delivered to and accepted by the Underwriters and subject to the approval of legal matters by their counsel. In such cases, any order from you for securities will be strictly subject to confirmation and we reserve the right in our uncontrolled discretion to reject any order in whole or in part. Upon release by us, you may reoffer such securities at the offering price fixed by us. With our consent, you may allow a discount, not in excess of the reallowance fixed by us, in selling such securities to other dealers, provided that in doing so you comply with the Rules of Fair Practice of the National Association of Securities Dealers, Inc. (the "NASD"). Upon our request, you will advise us of the identity of any dealer to whom you allow such a discount and any Underwriter or dealer from whom you receive such a discount. After the securities are released for sale to the public, we may vary the offering price and other selling terms.
2. You represent that you are a dealer actually engaged in the investment banking or securities business and that you are either (i) a member in good standing of the NASD or (ii) a dealer with its principal place of business located outside the United States, its territories or possessions and not registered under the Securities Exchange Act of 1934 (a "non-member foreign dealer") or (iii) a bank not eligible for membership in the NASD. If you are a non-member foreign dealer, you agree to make no sales of securities within the United States, its territories or its possessions or to persons who are nationals thereof or residents therein. Non-member foreign dealers and banks agree, in making any sales, to comply with the NASD's interpretation with respect to free-riding and withholding. In accepting a selling concession where we are acting as Representative of the Underwriters, in accepting a reallowance from us whether or not we are acting as such Representative, and in allowing a discount to any other person, you agree to comply with the provisions of Section 24 of Article III of the Rules of Fair Practice of the NASD, and, in addition, if you are a non-member foreign dealer or bank, you agree to comply, as though you were a member of the NASD, with the provisions of Sections 8 and 36 of Article III of such Rules of Fair Practice and to comply with Section 25 of Article III thereof as that Section applies to a non-member foreign dealer or bank. You represent that you are fully familiar with the above provisions of the Rules of Fair Practice of the NASD.
3. If the securities have been registered under the Securities Act of 1933 (the "1933 Act"), in offering and selling such securities, you are not authorized to give any information or make any
representation not contained in the prospectus relating thereto. You confirm that you are familiar with the rules and policies of the Securities and Exchange Commission relating to the distribution of preliminary and final prospectuses, and you agree that you will comply therewith in any offering covered by this Agreement. If we are acting as Representative of the Underwriters, we will make available to you, to the extent made available to us by the issuer of the securities, such number of copies of the prospectus or offering documents, for securities not registered under the 1933 Act, as you may reasonably request.
4. If we are acting as Representative of the Underwriters of securities of an issuer that is not required to file reports under the Securities Exchange Act of 1934 (the "1934 Act"), you agree that you will not sell any of the securities to any account over which you have discretionary authority.
5. Payment for securities purchased by you is to be made at our office, One Liberty Plaza, 165 Broadway, New York, N.Y. 10006 (or at such other place as we may advise), at the offering price less the concession allowed to you, on such date as we may advise, by certified or official bank check in New York Clearing House funds (or such other funds as we may advise), payable to our order, against delivery of the securities to be purchased by you. We shall have authority to make appropriate arrangements for payment for and/or delivery through the facility of The Depository Trust Company or any such other depository or similar facility for the securities.
6. In the event that, prior to the completion of the distribution of securities covered by this Agreement, we purchase in the open market or otherwise any securities delivered to you, if we are acting as Representative of the Underwriters, you agree to repay to us for the accounts of the Underwriters the amount of the concession allowed to you plus brokerage commissions and any transfer taxes paid in connection with such purchase.
7. At any time prior to the completion of the distribution of securities covered by this Agreement you will, upon our request as Representative of the Underwriters, report to us the amount of securities purchased by you which then remains unsold and will, upon our request, sell to us for the account of one or more of the Underwriters such amount of such unsold securities as we may designate, at the offering price less an amount to be determined by us not in excess of the concession allowed to you.
8. If we are acting as Representative of the Underwriters, upon application to us, we will inform you of the states and other jurisdictions of the United States in which it is believed that the securities being offered are qualified for sale under, or are exempt from the requirements of, their respective securities laws, but we assume no responsibility with respect to your right to sell securities in any jurisdiction. We shall have authority to file with the Department of State of the State of New York a Further State Notice with respect to the securities, if necessary.
9. You agree that in connection with any offering of securities covered by this Agreement you will comply with the applicable provisions of the 1933 Act and the 1934 Act and the applicable rules and regulations of the Securities and Exchange Commission thereunder, the applicable rules and regulations of the NASD, and the applicable rules of any securities exchange having jurisdiction over the offering.
10. We shall have full authority to take such action as we may deem advisable in respect of all matters pertaining to any offering covered by this Agreement. We shall be under no liability to you except for our lack of good faith and for obligations assumed by us in this Agreement, except that you do not waive any rights that you may have under the 1933 Act or the rules and regulations thereunder.
11. Any notice from us shall be deemed to have been duly given if mailed or transmitted by any standard form of written telecommunications to you at the above address or at such other address as you shall specify to us in writing.
12. With respect to any Offering of securities covered by this Agreement, the price restrictions contained in Paragraph 1 hereof and the provisions of Paragraphs 6 and 7 hereof shall terminate as to such offering at the close of business on the 45th day after the securities are released for sale or, as to any or all such provisions, at such earlier time as we may advise. All other provisions of this Agreement shall remain operative and in full force and effect with respect to such offering.
13. This Agreement shall be governed by the laws of the State of New York.
Please confirm your agreement hereto by signing the enclosed duplicate copy hereof in the place provided below and returning such signed duplicate copy to us at World Headquarters, North Tower, World Financial Center, New York, N.Y. 10281-1305, Attention: Corporate Syndicate. Upon receipt thereof, this instrument and such signed duplicate copy will evidence the agreement between us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Fred F. Hessinger --------------------------------- Name: Fred F. Hessinger |
Confirmed and accepted as of the
day of ,19
Exhibit 9
CUSTODY AGREEMENT
Agreement made as of this 14th day of June, 1993, between MuniAssets Fund, Inc., a corporation organized and existing under the laws of the State of Maryland having its principal office and place of business at hereinafter called the "Fund"), and THE BANK OF NEW YORK, a New York corporation authorized to do a banking business, having its principal office and place of business at 48 Wall Street, New York, New York 10286 (hereinafter called the "Custodian").
W I T N E S S E T H:
that for and in consideration of the mutual promises hereinafter set forth, the Fund and the Custodian agree as follows:
ARTICLE I.
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the following meanings:
1. "Book-Entry System" shall mean the Federal Reserve/Treasury book-entry system for United States and federal agency securities, its successor or successors and its nominee or nominees.
2. "Call Option" shall mean an exchange traded option with respect to Securities other than Stock Index Options, Futures Contracts, and Futures Contract Options entitling the holder, upon timely exercise and payment of the exercise price, as specified therein, to purchase from the writer thereof the specified underlying Securities.
3. "Certificate" shall mean any notice, instruction, or other instrument in writing, authorized or required by this Agreement to be given to the Custodian which is actually received by the Custodian and signed on behalf of the Fund by any two Officers, and the term Certificate shall also include instructions by the Fund to the Custodian communicated by a Terminal Link.
4. "Clearing Member" shall mean a registered broker-dealer which is a clearing member under the rules of O.C.C. and a member of a national securities exchange qualified to act as a custodian for an investment company, or any broker-dealer reasonably believed by the Custodian to be such a clearing member.
5. "Collateral Account" shall mean a segregated account so denominated which is specifically allocated to a Series and pledged to the Custodian as security for, and in consideration of, the Custodian's issuance of (a) any Put Option guarantee letter or similar document described in paragraph 8 of Article V herein, or (b) any receipt described in Article V or VIII herein.
6. "Covered Call Option" shall mean an exchange traded option entitling the holder, upon timely exercise and payment of the exercise price, as specified therein, to purchase from the writer thereof the specified underlying Securities (excluding Futures Contracts) which are owned by the writer thereof and subject to appropriate restrictions.
7. "Depository" shall mean The Depository Trust Company ("DTC"), a clearing agency registered with the Securities and Exchange Commission, its successor or successors and its nominee or nominees. The term "Depository" shall further mean and include any other person authorized to act as a depository under the Investment Company Act of 1940, its successor or successors and its nominee or nominees, specifically identified in a certified copy of a resolution of the Fund's Board of Directors specifically approving deposits therein by the Custodian.
8. "Financial Futures Contract" shall mean the firm commitment to buy or sell fixed income securities including, without limitation, U.S. Treasury Bills, U.S. Treasury Notes, U.S. Treasury Bonds, domestic bank certificates of deposit, and Eurodollar certificates of deposit, during a specified month at an agreed upon price.
9. "Futures Contract" shall mean a Financial Futures Contract and/or Stock Index Futures Contracts.
10. "Futures Contract Option" shall mean an option with respect to a Futures Contract.
11. "Margin Account" shall mean a segregated account in the name of a broker, dealer, futures commission merchant, or a Clearing Member, or in the name of the Fund for the benefit of a broker, dealer, futures commission merchant, or Clearing Member, or otherwise, in accordance with an agreement between the Fund, the Custodian and a broker, dealer, futures commission merchant or a Clearing Member (a "Margin Account Agreement"), separate and distinct from the custody account, in which certain Securities and/or money of the Fund shall be deposited and withdrawn from time to time in connection with such transactions as the Fund may from time to time determine. Securities held in the Book-Entry System or the Depository shall be deemed to have been deposited in, or withdrawn from, a Margin Account upon the Custodian's effecting an appropriate entry in its books and records.
12. "Money Market Security" shall be deemed to include, without limitation, certain Reverse Repurchase Agreements, debt obligations issued or guaranteed as to interest and principal by the government of the United States or agencies or instrumentalities thereof, any tax, bond or revenue anticipation note issued by any state or municipal government or public authority, commercial paper, certificates of deposit and bankers' acceptances, repurchase agreements with respect to the same and bank time deposits, where the purchase and sale of such securities normally requires settlement in federal funds on the same day as such purchase or sale.
13. "O.C.C." shall mean the Options Clearing Corporation, a clearing agency registered under Section 17A of the Securities Exchange Act of 1934, its successor or successors, and its nominee or nominees.
14. "Officers" shall be deemed to include the President, any Vice President, the Secretary, the Treasurer, the Controller, any Assistant Secretary, any Assistant Treasurer, and any other person or persons, whether or not any such other person is an officer of the Fund, duly authorized by the Board of Directors of the Fund to execute any Certificate, instruction, notice or other instrument on behalf of the Fund and listed in the Certificate annexed hereto as Appendix A or such other Certificate as may be received by the Custodian from time to time.
15. "Option" shall mean a Call Option, Covered Call Option, Stock Index Option and/or a Put Option.
16. "Oral Instructions" shall mean verbal instructions actually received by the Custodian from an Officer or from a person reasonably believed by the Custodian to be an Officer.
17. "Put Option" shall mean an exchange traded option with respect to Securities other than Stock Index Options, Futures Contracts, and Futures Contract Options entitling the holder, upon timely exercise and tender of the specified underlying Securities, to sell such Securities to the writer thereof for the exercise price.
18. "Reverse Repurchase Agreement" shall mean an agreement pursuant to which the Fund sells Securities and agrees to repurchase such Securities at a described or specified date and price.
19. "Security" shall be deemed to include, without limitation, Money Market Securities, Call Options, Put Options, Stock Index Options, Stock Index Futures Contracts, Stock Index Futures Contract Options, Financial Futures Contracts, Financial Futures Contract Options, Reverse Repurchase Agreements, common stocks and other securities having characteristics similar to common stocks, preferred
stocks, debt obligations issued by state or municipal governments and by public authorities (including, without limitation, general obligation bonds, revenue bonds, industrial bonds and industrial development bonds), bonds, debentures, notes, mortgages or other obligations, and any certificates, receipts, warrants or other instruments representing rights to receive, purchase, sell or subscribe for the same, or evidencing or representing any other rights or interest therein, or any property or assets.
20. "Senior Security Account" shall mean an account maintained and specifically allocated to a Series under the terms of this Agreement as a segregated account, by recordation or otherwise, within the custody account in which certain Securities and/or other assets of the Fund specifically allocated to such Series shall be deposited and withdrawn from time to time in accordance with Certificates received by the Custodian in connection with such transactions as the Fund may from time to time determine.
21. "Series" shall mean the various portfolios, if any, of the Fund as described from time to time in the current and effective prospectus for the Fund.
22. "Shares" shall mean the shares of capital stock of the Fund, each of which is, in the case of a Fund having Series, allocated to a particular Series.
23. "Stock Index Futures Contract" shall mean a bilateral agreement pursuant to which the parties agree to take or make delivery of an amount of cash equal to a specified dollar amount times the difference between the value of a particular stock index at the close of the last business day of the contract and the price at which the futures contract is originally struck.
24. "Stock Index Option" shall mean an exchange traded option entitling the holder, upon timely exercise, to receive an amount of cash determined by reference to the difference between the exercise price and the value of the index on the date of exercise.
25. "Terminal Link" shall mean an electronic data transmission link between the Fund and the Custodian requiring in connection with each use of the Terminal Link by or on behalf of the Fund use of an authorization code provided by the Custodian and at least two access codes established by the Fund.
ARTICLE II.
APPOINTMENT OF CUSTODIAN
1. The Fund hereby constitutes and appoints the Custodian as custodian of the Securities and moneys at any time owned by the Fund during the period of this Agreement.
2. The Custodian hereby accepts appointment as such custodian and agrees to perform the duties thereof as hereinafter set forth.
ARTICLE III.
CUSTODY OF CASH AND SECURITIES
1. Except as otherwise provided in paragraph 7 of this Article and in Article VIII, the Fund will deliver or cause to be delivered to the Custodian all Securities and all moneys owned by it, at any time during the period of this Agreement, and shall specify with respect to such Securities and money the Series to which the same are specifically allocated. The Custodian shall segregate, keep and maintain the assets of the Series separate and apart. The Custodian will not be responsible for any Securities and moneys not actually received by it. The Custodian will be entitled to reverse any credits made on the Fund's behalf where such credits have been previously made and moneys are not finally collected. The Fund shall deliver to the Custodian a certified resolution of the Board of Directors of the Fund, substantially in the form of Exhibit A hereto, approving, authorizing and instructing the Custodian on a continuous and on-going basis to deposit in the Book-Entry System all Securities eligible for deposit therein, regardless of the Series to which the same are specifically allocated and to utilize the Book-Entry System to the extent possible in connection with its performance hereunder, including, without limitation, in connection with settlements of purchases and sales of Securities, loans of Securities and deliveries and returns of Securities collateral. Prior to a deposit of Securities specifically allocated to a Series in the Depository, the Fund shall deliver to the Custodian a certified resolution of the Board of Directors of the Fund, substantially in the form of Exhibit B hereto, approving, authorizing and instructing the Custodian on a continuous and ongoing basis until instructed to the contrary by a Certificate actually received by the Custodian to deposit in the Depository all Securities specifically allocated to such Series eligible for deposit therein, and to utilize the Depository to the extent possible with respect to such Securities in connection with its performance hereunder, including, without limitation, in connection with settlements of purchases and sales of Securities, loans of Securities, and deliveries and returns of Securities collateral. Securities and moneys deposited in either the Book-Entry System or the
Depository will be represented in accounts which include only assets held by the Custodian for customers, including, but not limited to, accounts in which the Custodian acts in a fiduciary or representative capacity and will be specifically allocated on the Custodian's books to the separate account for the applicable Series. Prior to the Custodian's accepting, utilizing and acting with respect to Clearing Member confirmations for Options and transactions in Options for a Series as provided in this Agreement, the Custodian shall have received a certified resolution of the Fund's Board of Directors, substantially in the form of Exhibit C hereto, approving, authorizing and instructing the Custodian on a continuous and on-going basis, until instructed to the contrary by a Certificate actually received by the Custodian, to accept, utilize and act in accordance with such confirmations as provided in this Agreement with respect to such Series.
2. The Custodian shall establish and maintain separate accounts, in the name of each Series, and shall credit to the separate account for each Series all moneys received by it for the account of the Fund with respect to such Series. Money credited to a separate account for a Series shall be disbursed by the Custodian only:
(a) As hereinafter provided;
(b) Pursuant to Certificates setting forth the name and address of the person to whom the payment is to be made, the Series account from which payment is to be made and the purpose for which payment is to be made; or
(c) In payment of the fees and in reimbursement of the expenses and liabilities of the Custodian attributable to such Series.
3. Promptly after the close of business on each day, the Custodian shall furnish the Fund with confirmations and a summary, on a per Series basis, of all transfers to or from the account of the Fund for a Series, either hereunder or with any co-custodian or sub-custodian appointed in accordance with this Agreement during said day. Where Securities are transferred to the account of the Fund for a Series, the Custodian shall also by book-entry or otherwise identify as belonging to such Series a quantity of Securities in a fungible bulk of Securities registered in the name of the Custodian (or its nominee) or shown on the Custodian's account on the books of the Book-Entry System or the Depository. At least monthly and from time to time, the Custodian shall furnish the Fund with a detailed statement, on a per Series basis, of the Securities and moneys held by the Custodian for the Fund.
4. Except as otherwise provided in paragraph 7 of this Article and in Article VIII, all Securities held by the
Custodian hereunder, which are issued or issuable only in bearer form, except such Securities as are held in the Book-Entry System, shall be held by the Custodian in that form; all other Securities held hereunder may be registered in the name of the Fund, in the name of any duly appointed registered nominee of the Custodian as the Custodian may from time to time determine, or in the name of the Book-Entry System or the Depository or their successor or successors, or their nominee or nominees. The Fund agrees to furnish to the Custodian appropriate instruments to enable the Custodian to hold or deliver in proper form for transfer, or to register in the name of its registered nominee or in the name of the Book-Entry System or the Depository any Securities which it may hold hereunder and which may from time to time be registered in the name of the Fund. The Custodian shall hold all such Securities specifically allocated to a Series which are not held in the Book-Entry System or in the Depository in a separate account in the name of such Series physically segregated at all times from those of any other person or persons.
5. Except as otherwise provided in this Agreement and unless otherwise instructed to the contrary by a Certificate, the Custodian by itself, or through the use of the Book-Entry System or the Depository with respect to Securities held hereunder and therein deposited, shall with respect to all Securities held for the Fund hereunder in accordance with preceding paragraph 4:
(a) Collect all income due or payable;
(b) Present for payment and collect the amount payable upon such Securities which are called, but only if either (i) the Custodian receives a written notice of such call, or (ii) notice of such call appears in one or more of the publications listed in Appendix B annexed hereto, which may be amended at any time by the Custodian without the prior notification or consent of the Fund;
(c) Present for payment and collect the amount payable upon all Securities which mature;
(d) Surrender Securities in temporary form for definitive Securities;
(e) Execute, as custodian, any necessary declarations or certificates of ownership under the Federal Income Tax Laws or the laws or regulations of any other taxing authority now or hereafter in effect; and
(f) Hold directly, or through the Book-Entry System or the Depository with respect to Securities therein deposited, for the account of a Series, all rights and similar securities issued with respect to any Securities held by the Custodian for such Series hereunder.
6. Upon receipt of a Certificate and not otherwise, the Custodian, directly or through the use of the Book-Entry System or the Depository, shall:
(a) Execute and deliver to such persons as may be designated in such Certificate proxies, consents, authorizations, and any other instruments whereby the authority of the Fund as owner of any Securities held by the Custodian hereunder for the Series specified in such Certificate may be exercised;
(b) Deliver any Securities held by the Custodian hereunder for the Series specified in such Certificate in exchange for other Securities or cash issued or paid in connection with the liquidation, reorganization, refinancing, merger, consolidation or recapitalization of any corporation, or the exercise of any conversion privilege and receive and hold hereunder specifically allocated to such Series any cash or other Securities received in exchange;
(c) Deliver any Securities held by the Custodian hereunder for the Series specified in such Certificate to any protective committee, reorganization committee or other person in connection with the reorganization, refinancing, merger, consolidation, recapitalization or sale of assets of any corporation, and receive and hold hereunder specifically allocated to such Series such certificates of deposit, interim receipts or other instruments or documents as may be issued to it to evidence such delivery;
(d) Make such transfers or exchanges of the assets of the Series specified in such Certificate, and take such other steps as shall be stated in such Certificate to be for the purpose of effectuating any duly authorized plan of liquidation, reorganization, merger, consolidation or recapitalization of the Fund; and
(e) Present for payment and collect the amount payable upon Securities not described in preceding paragraph 5(b) of this Article which may be called as specified in the Certificate.
7. Notwithstanding any provision elsewhere contained herein, the Custodian shall not be required to obtain possession of any instrument or certificate representing any Futures Contract, any Option, or any Futures Contract Option until after it shall have determined, or shall have received a Certificate from the Fund stating, that any such instruments or certificates are available. The Fund shall deliver to the Custodian such a Certificate no later than the business day preceding the availability of any such instrument or certificate. Prior to such availability, the Custodian shall comply with Section 17(f) of the Investment Company Act of 1940, as amended, in connection with the purchase, sale,
settlement, closing out or writing of Futures Contracts, Options, or Futures Contract Options by making payments or deliveries specified in Certificates received by the Custodian in connection with any such purchase, sale, writing, settlement or closing out upon its receipt from a broker, dealer, or futures commission merchant of a statement or confirmation reasonably believed by the Custodian to be in the form customarily used by brokers, dealers, or future commission merchants with respect to such Futures Contracts, Options, or Futures Contract Options, as the case may be, confirming that such Security is held by such broker, dealer or futures commission merchant, in book-entry form or otherwise, in the name of the Custodian (or any nominee of the Custodian) as custodian for the Fund, provided, however, that notwithstanding the foregoing, payments to or deliveries from the Margin Account, and payments with respect to Securities to which a Margin Account relates, shall be made in accordance with the terms and conditions of the Margin Account Agreement. Whenever any such instruments or certificates are available, the Custodian shall, notwithstanding any provision in this Agreement to the contrary, make payment for any Futures Contract, Option, or Futures Contract Option for which such instruments or such certificates are available only against the delivery to the Custodian of such instrument or such certificate, and deliver any Futures Contract, Option or Futures Contract Option for which such instruments or such certificates are available only against receipt by the Custodian of payment therefor. Any such instrument or certificate delivered to the Custodian shall be held by the Custodian hereunder in accordance with, and subject to, the provisions of this Agreement.
ARTICLE IV.
PURCHASE AND SALE OF INVESTMENTS OF THE FUND
OTHER THAN OPTIONS, FUTURES CONTRACTS AND
FUTURES CONTRACT OPTIONS
1. Promptly after each purchase of Securities by the Fund, other than a purchase of an Option, a Futures Contract, or a Futures Contract Option, the Fund shall deliver to the Custodian (i) with respect to each purchase of Securities which are not Money Market Securities, a Certificate, and (ii) with respect to each purchase of Money Market Securities, a Certificate or Oral Instructions, specifying with respect to each such purchase: (a) the Series to which such Securities are to be specifically allocated; (b) the name of the issuer and the title of the Securities; (c) the number of shares or the principal amount purchased and accrued interest, if any; (d) the date of purchase and settlement; (e) the purchase price per unit; (f) the total amount payable upon such purchase; (g) the name of the person from whom or the broker through whom the purchase was made, and the name of the
clearing broker, if any; and (h) the name of the broker to whom payment is to be made. The Custodian shall, upon receipt of Securities purchased by or for the Fund, pay to the broker specified in the Certificate out of the moneys held for the account of such Series the total amount payable upon such purchase, provided that the same conforms to the total amount payable as set forth in such Certificate or Oral Instructions.
2. Promptly after each sale of Securities by the Fund, other than a sale of any Option, Futures Contract, Futures Contract Option, or any Reverse Repurchase Agreement, the Fund shall deliver to the Custodian (i) with respect to each sale of Securities which are not Money Market Securities, a Certificate, and (ii) with respect to each sale of Money Market Securities, a Certificate or Oral Instructions, specifying with respect to each such sale: (a) the Series to which such Securities were specifically allocated; (b) the name of the issuer and the title of the Security; (c) the number of shares or principal amount sold, and accrued interest, if any; (d) the date of sale; (e) the sale price per unit; (f) the total amount payable to the Fund upon such sale; (g) the name of the broker through whom or the person to whom the sale was made, and the name of the clearing broker, if any; and (h) the name of the broker to whom the Securities are to be delivered. The Custodian shall deliver the Securities specifically allocated to such Series to the broker specified in the Certificate against payment of the total amount payable to the Fund upon such sale, provided that the same conforms to the total amount payable as set forth in such Certificate or Oral Instructions.
ARTICLE V.
OPTIONS
1. Promptly after the purchase of any Option by the Fund, the Fund shall deliver to the Custodian a Certificate specifying with respect to each Option purchased: (a) the Series to which such Option is specifically allocated; (b) the type of Option (put or call); (c) the name of the issuer and the title and number of shares subject to such Option or, in the case of a Stock Index Option, the stock index to which such Option relates and the number of Stock Index Options purchased; (d) the expiration date; (e) the exercise price; (f) the dates of purchase and settlement; (g) the total amount payable by the Fund in connection with such purchase; (h) the name of the Clearing Member through whom such Option was purchased; and (i) the name of the broker to whom payment is to be made. The Custodian shall pay, upon receipt of a Clearing Member's statement confirming the purchase of such Option held by such Clearing Member for the account of the Custodian (or any duly appointed and registered nominee of the Custodian) as custodian for the Fund, out of moneys held for the account of the Series to which such Option is to be
specifically allocated, the total amount payable upon such purchase to the Clearing Member through whom the purchase was made, provided that the same conforms to the total amount payable as set forth in such Certificate.
2. Promptly after the sale of any Option purchased by the Fund pursuant to paragraph 1 hereof, the Fund shall deliver to the Custodian a Certificate specifying with respect to each such sale: (a) the Series to which such Option was specifically allocated; (b) the type of Option (put or call); (c) the name of the issuer and the title and number of shares subject to such Option or, in the case of a Stock Index Option, the stock index to which such Option relates and the number of Stock Index Options sold; (d) the date of sale; (e) the sale price; (f) the date of settlement; (g) the total amount payable to the Fund upon such sale; and (h) the name of the Clearing Member through whom the sale was made. The Custodian shall consent to the delivery of the Option sold by the Clearing Member which previously supplied the confirmation described in preceding paragraph 1 of this Article with respect to such Option against payment to the Custodian of the total amount payable to the Fund, provided that the same conforms to the total amount payable as set forth in such Certificate.
3. Promptly after the exercise by the Fund of any Call Option purchased by
the Fund pursuant to paragraph 1 hereof, the Fund shall deliver to the Custodian
a Certificate specifying with respect to such Call Option: (a) the Series to
which such Call Option was specifically allocated; (b) the name of the issuer
and the title and number of shares subject to the Call Option; (c) the
expiration date; (d) the date of exercise and settlement; (e) the exercise price
per share; (f) the total amount to be paid by the Fund upon such exercise; and
(g) the name of the Clearing Member through whom such Call Option was exercised.
The Custodian shall, upon receipt of the Securities underlying the Call Option
which was exercised, pay out of the moneys held for the account of the Series to
which such Call Option was specifically allocated the total amount payable to
the Clearing Member through whom the Call Option was exercised, provided that
the same conforms to the total amount payable as set forth in such Certificate.
4. Promptly after the exercise by the Fund of any Put Option purchased by
the Fund pursuant to paragraph 1 hereof, the Fund shall deliver to the Custodian
a Certificate specifying with respect to such Put Option: (a) the Series to
which such Put Option was specifically allocated; (b) the name of the issuer and
the title and number of shares subject to the Put Option; (c) the expiration
date; (d) the date of exercise and settlement; (e) the exercise price per share;
(f) the total amount to be paid to the Fund upon such exercise; and (g) the name
of the Clearing Member through whom such Put Option was exercised. The Custodian
shall, upon receipt of the amount payable upon the exercise of the Put Option,
deliver or
direct the Depository to deliver the Securities specifically allocated to such Series, provided the same conforms to the amount payable to the Fund as set forth in such Certificate.
5. Promptly after the exercise by the Fund of any Stock Index Option
purchased by the Fund pursuant to paragraph 1 hereof, the Fund shall deliver to
the Custodian a Certificate specifying with respect to such Stock Index Option:
(a) the Series to which such Stock Index Option was specifically allocated; (b)
the type of Stock Index Option (put or call); (c) the number of Options being
exercised; (d) the stock index to which such Option relates; (e) the expiration
date; (f) the exercise price; (g) the total amount to be received by the Fund in
connection. with such exercise; and (h) the Clearing Member from whom such
payment is to be received.
6. Whenever the Fund writes a Covered Call Option, the Fund shall promptly
deliver to the Custodian a Certificate specifying with respect to such Covered
Call Option: (a) the Series for which such Covered Call Option was written; (b)
the name of the issuer and the title and number of shares for which the Covered
Call Option was written and which underlie the same; (c) the expiration date;
(d) the exercise price; (e) the premium to be received by the Fund; (f) the date
such Covered Call Option was written; and (g) the name of the Clearing Member
through whom the premium is to be received. The Custodian shall deliver or cause
to be delivered, in exchange for receipt of the premium specified in the
Certificate with respect to such Covered Call Option, such receipts as are
required in accordance with the customs prevailing among Clearing Members
dealing in Covered Call Options and shall impose, or direct the Depository to
impose, upon the underlying Securities specified in the Certificate specifically
allocated to such Series such restrictions as may be required by such receipts.
Notwithstanding the foregoing, the Custodian has the right, upon prior written
notification to the Fund, at any time to refuse to issue any receipts for
Securities in the possession of the Custodian and not deposited with the
Depository underlying a Covered Call Option.
7. Whenever a Covered Call Option written by the Fund and described in the preceding paragraph of this Article is exercised, the Fund shall promptly deliver to the Custodian a Certificate instructing the Custodian to deliver, or to direct the Depository to deliver, the Securities subject to such Covered Call Option and specifying: (a) the Series for which such Covered Call Option was written; (b) the name of the issuer and the title and number of shares subject to the Covered Call Option; (c) the Clearing Member to whom the underlying Securities are to be delivered; and (d) the total amount payable to the Fund upon such delivery. Upon the return and/or cancellation of any receipts delivered pursuant to paragraph 6 of this Article, the Custodian shall deliver, or direct the Depository to deliver, the underlying Securities as specified
in the Certificate against payment of the amount to be received as set forth in such Certificate.
8. Whenever the Fund writes a Put Option, the Fund shall promptly deliver to the Custodian a Certificate specifying with respect to such Put Option: (a) the Series for which such Put Option was written; (b) the name of the issuer and the title and number of shares for which the Put Option is written and which underlie the same; (c) the expiration date; (d) the exercise price; (e) the premium to be received by the Fund; (f) the date such Put Option is written; (g) the name of the Clearing Member through whom the premium is to be received and to whom a Put Option guarantee letter is to be delivered; (h) the amount of cash, and/or the amount and kind of Securities, if any, specifically allocated to such Series to be deposited in the Senior Security Account for such Series; and (i) the amount of cash and/or the amount and kind of Securities specifically allocated to such Series to be deposited into the Collateral Account for such Series. The Custodian shall, after making the deposits into the Collateral Account specified in the Certificate, issue a Put Option guarantee letter substantially in the form utilized by the Custodian on the date hereof, and deliver the same to the Clearing Member specified in the Certificate against receipt of the premium specified in said Certificate. Notwithstanding the foregoing, the Custodian shall be under no obligation to issue any Put Option guarantee letter or similar document if it is unable to make any of the representations contained therein.
9. Whenever a Put Option written by the Fund and described in the preceding paragraph is exercised, the Fund shall promptly deliver to the Custodian a Certificate specifying: (a) the Series to which such Put Option was written; (b) the name of the issuer and title and number of shares subject to the Put Option; (c) the Clearing Member from whom the underlying Securities are to be received; (d) the total amount payable by the Fund upon such delivery; (e) the amount of cash and/or the amount and kind of Securities specifically allocated to such Series to be withdrawn from the Collateral Account for such Series and (f) the amount of cash and/or the amount and kind of Securities, specifically allocated to such Series, if any, to be withdrawn from the Senior Security Account. Upon the return and/or cancellation of any Put Option guarantee letter or similar document issued by the Custodian in connection with such Put Option, the Custodian shall pay out of the moneys held for the account of the Series to which such Put Option was specifically allocated the total amount payable to the Clearing Member specified in the Certificate as set forth in such Certificate against delivery of such Securities, and shall make the withdrawals specified in such Certificate.
10. Whenever the Fund writes a Stock Index Option, the Fund shall promptly deliver to the Custodian a Certificate specifying with respect to such Stock Index Option: (a) the
Series for which such Stock Index Option was written; (b) whether such Stock
Index Option is a put or a call; (c) the number of options written; (d) the
stock index to which such Option relates; (e) the expiration date; (f) the
exercise price; (g) the Clearing Member through whom such Option was written;
(h) the premium to be received by the Fund; (i) the amount of cash and/or the
amount and kind of Securities, if any, specifically allocated to such Series to
be deposited in the Senior Security Account for such Series; (j) the amount of
cash and/or the amount and kind of Securities, if any, specifically allocated to
such Series to be deposited in the Collateral Account for such Series; and (k)
the amount of cash and/or the amount and kind of Securities, if any,
specifically allocated to such Series to be deposited in a Margin Account, and
the name in which such account is to be or has been established. The Custodian
shall, upon receipt of the premium specified in the Certificate, make the
deposits, if any, into the Senior Security Account specified in the Certificate,
and either (1) deliver such receipts, if any, which the Custodian has
specifically agreed to issue, which are in accordance with the customs
prevailing among Clearing Members in Stock Index Options and make the deposits
into the Collateral Account specified in the Certificate, or (2) make the
deposits into the Margin Account specified in the Certificate.
11. Whenever a Stock Index Option written by the Fund and described in the preceding paragraph of this Article is exercised, the Fund shall promptly deliver to the Custodian a Certificate specifying with respect to such Stock Index Option: (a) the Series for which such Stock Index Option was written; (b) such information as may be necessary to identify the Stock Index Option being exercised; (c) the Clearing Member through whom such Stock Index Option is being exercised; (d) the total amount payable upon such exercise, and whether such amount is to be paid by or to the Fund; (e) the amount of cash and/or amount and kind of Securities, if any, to be withdrawn from the Margin Account; and (f) the amount of cash and/or amount and kind of Securities, if any, to be withdrawn from the Senior Security Account for such Series; and the amount of cash and/or the amount and kind of Securities, if any, to be withdrawn from the Collateral Account for such Series. Upon the return and/or cancellation of the receipt, if any, delivered pursuant to the preceding paragraph of this Article, the Custodian shall pay out of the moneys held for the account of the Series to which such Stock Index Option was specifically allocated to the Clearing Member specified in the Certificate the total amount payable, if any, as specified therein.
12. Whenever the Fund purchases any Option identical to a previously written Option described in paragraphs, 6, 8 or 10 of this Article in a transaction expressly designated as a "Closing Purchase Transaction" in order to liquidate its position as a writer of an Option, the Fund shall promptly deliver to the Custodian a Certificate specifying with respect to the
Option being purchased: (a) that the transaction is a Closing Purchase Transaction; (b) the Series for which the Option was written; (c) the name of the issuer and the title and number of shares subject to the Option, or, in the case of a Stock Index Option, the stock index to which such Option relates and the number of Options held; (d) the exercise price; (e) the premium to be paid by the Fund; (f) the expiration date; (g) the type of Option (put or call); (h) the date of such purchase; (i) the name of the Clearing Member to whom the premium is to be paid; and (j) the amount of cash and/or the amount and kind of Securities, if any, to be withdrawn from the Collateral Account, a specified Margin Account, or the Senior Security Account for such Series. Upon the Custodian's payment of the premium and the return and/or cancellation of any receipt issued pursuant to paragraphs 6, 8 or 10 of this Article with respect to the Option being liquidated through the Closing Purchase Transaction, the Custodian shall remove, or direct the Depository to remove, the previously imposed restrictions on the Securities underlying the Call Option.
13. Upon the expiration, exercise or consummation of a Closing Purchase Transaction with respect to any Option purchased or written by the Fund and described in this Article, the Custodian shall delete such Option from the statements delivered to the Fund pursuant to paragraph 3 Article III herein, and upon the return and/or cancellation of any receipts issued by the Custodian, shall make such withdrawals from the Collateral Account, and the Margin Account and/or the Senior Security Account as may be specified in a Certificate received in connection with such expiration, exercise, or consummation.
ARTICLE VI.
FUTURES CONTRACTS
1. Whenever the Fund shall enter into a Futures Contract, the Fund shall deliver to the Custodian a Certificate specifying with respect to such Futures Contract, (or with respect to any number of identical Futures Contract(s)): (a) the Series for which the Futures Contract is being entered; (b) the category of Futures Contract (the name of the underlying stock index or financial instrument); (c) the number of identical Futures Contracts entered into; (d) the delivery or settlement date of the Futures Contract (s); (e) the date the Futures Contract(s) was (were) entered into and the maturity date; (f) whether the Fund is buying (going long) or selling (going short) on such Futures Contract(s); (g) the amount of cash and/or the amount and kind of Securities, if any, to be deposited in the Senior Security Account for such Series; (h) the name of the broker, dealer, or futures commission merchant through whom the Futures Contract was entered into; and (i) the amount of fee or commission, if any, to be paid and the name of the broker,
dealer, or futures commission merchant to whom such amount is to be paid. The Custodian shall make the deposits, if any, to the Margin Account in accordance with the terms and conditions of the Margin Account Agreement. The Custodian shall make payment out of the moneys specifically allocated to such Series of the fee or commission, if any, specified in the Certificate and deposit in the Senior Security Account for such Series the amount of cash and/or the amount and kind of Securities specified in said Certificate.
2. (a) Any variation margin payment or similar payment required to be made by the Fund to a broker, dealer, or futures commission merchant with respect to an outstanding Futures Contract, shall be made by the Custodian in accordance with the terms and conditions of the Margin Account Agreement.
(b) Any variation margin payment or similar payment from a broker, dealer, or futures commission merchant to the Fund with respect to an outstanding Futures Contract, shall be received and dealt with by the Custodian in accordance with the terms and conditions of the Margin Account Agreement.
3. Whenever a Futures Contract held by the Custodian hereunder is retained by the Fund until delivery or settlement is made on such Futures Contract, the Fund shall deliver to the Custodian a Certificate specifying: (a) the Futures Contract and the Series to which the same relates; (b) with respect to a Stock Index Futures Contract, the total cash settlement amount to be paid or received, and with respect to a Financial Futures Contract, the Securities and/or amount of cash to be delivered or received; (c) the broker, dealer, or futures commission merchant to or from whom payment or delivery is to be made or received; and (d) the amount of cash and/or Securities to be withdrawn from the Senior Security Account for such Series. The Custodian shall make the payment or delivery specified in the Certificate, and delete such Futures Contract from the statements delivered to the Fund pursuant to paragraph 3 of Article III herein.
4. Whenever the Fund shall enter into a Futures Contract to offset a Futures Contract held by the Custodian hereunder, the Fund shall deliver to the Custodian a Certificate specifying: (a) the items of information required in a Certificate described in paragraph 1 of this Article, and (b) the Futures Contract being offset. The Custodian shall make payment out of the money specifically allocated to such Series of the fee or commission, if any, specified in the Certificate and delete the Futures Contract being offset from the statements delivered to the Fund pursuant to paragraph 3 of Article III herein, and make such withdrawals from the Senior Security Account for such Series as may be specified in such Certificate. The withdrawals, if any, to be made from the Margin Account shall be made by the Custodian in accordance with the terms and conditions of the Margin Account Agreement.
ARTICLE VII.
FUTURES CONTRACT OPTIONS
1. Promptly after the purchase of any Futures Contract Option by the Fund,
the Fund shall promptly deliver to the Custodian a Certificate specifying with
respect to such Futures Contract Option: (a) the Series to which such Option is
specifically allocated; (b) the type of Futures Contract Option (put or call);
(c) the type of Futures Contract and such other information as may be necessary
to identify the Futures Contract underlying the Futures Contract Option
purchased; (d) the expiration date; (e) the exercise price; (f) the dates of
purchase and settlement; (g) the amount of premium to be paid by the Fund upon
such purchase; (h) the name of the broker or futures commission merchant through
whom such option was purchased; and (i) the name of the broker, or futures
commission merchant, to whom payment is to be made. The Custodian shall pay out
of the moneys specifically allocated to such Series, the total amount to be paid
upon such purchase to the broker or futures commissions merchant through whom
the purchase was made, provided that the same conforms to the amount set forth
in such Certificate.
2. Promptly after the sale of any Futures Contract Option purchased by the Fund pursuant to paragraph 1 hereof, the Fund shall promptly deliver to the Custodian a Certificate specifying with respect to each such sale: (a) Series to which such Futures Contract Option was specifically allocated; (b) the type of Future Contract Option (put or call); (c) the type of Futures Contract and such other information as may be necessary to identify the Futures Contract underlying the Futures Contract Option; (d) the date of sale; (e) the sale price; (f) the date of settlement; (g) the total amount payable to the Fund upon such sale; and (h) the name of the broker of futures commission merchant through whom the sale was made. The Custodian shall consent to the cancellation of the Futures Contract Option being closed against payment to the Custodian of the total amount payable to the Fund, provided the same conforms to the total amount payable as set forth in such Certificate.
3. Whenever a Futures Contract Option purchased by the Fund pursuant to paragraph 1 is exercised by the Fund, the Fund shall promptly deliver to the Custodian a Certificate specifying: (a) the Series to which such Futures Contract Option was specifically allocated; (b) the particular Futures Contract Option (put or call) being exercised; (c) the type of Futures Contract underlying the Futures Contract Option; (d) the date of exercise; (e) the name of the broker or futures commission merchant through whom the Futures Contract Option is exercised; (f) the net total amount, if any, payable by the Fund; (g) the amount, if any, to be received by the Fund; and
(h) the amount of cash and/or the amount and kind of Securities to be deposited in the Senior Security Account for such Series. The Custodian shall make, out of the moneys and Securities specifically allocated to such Series, the payments, if any, and the deposits, if any, into the Senior Security Account as specified in the Certificate. The deposits, if any, to be made to the Margin Account shall be made by the Custodian in accordance with the terms and conditions of the Margin Account Agreement.
4. Whenever the Fund writes a Futures Contract Option, the Fund shall promptly deliver to the Custodian a Certificate specifying with respect to such Futures Contract Option: (a) the Series for which such Futures Contract Option was written; (b) the type of Futures Contract Option (put or call); (c) the type of Futures Contract and such other information as may be necessary to identify the Futures Contract underlying the Futures Contract Option; (d) the expiration date; (e) the exercise price; (f) the premium to be received by the Fund; (g) the name of the broker or futures commission merchant through whom the premium is to be received; and (h) the amount of cash and/or the amount and kind of Securities, if any, to be deposited in the Senior Security Account for such Series. The Custodian shall, upon receipt of the premium specified in the Certificate, make out of the moneys and Securities specifically allocated to such Series the deposits into the Senior Security Account, if any, as specified in the Certificate. The deposits, if any, to be made to the Margin Account shall be made by the Custodian in accordance with the terms and conditions of the Margin Account Agreement.
5. Whenever a Futures Contract Option written by the Fund which is a call
is exercised, the Fund shall promptly deliver to the Custodian a Certificate
specifying: (a) the Series to which such Futures Contract Option was
specifically allocated; (b) the particular Futures Contract Option exercised;
(c) the type of Futures Contract underlying the Futures Contract Option; (d) the
name of the broker or futures commission merchant through whom such Futures
Contract Option was exercised; (e) the net total amount, if any, payable to the
Fund upon such exercise; (f) the net total amount, if any, payable by the Fund
upon such exercise; and (g) the amount of cash and/or the amount and kind of
Securities to be deposited in the Senior Security Account for such Series. The
Custodian shall, upon its receipt of the net total amount payable to the Fund,
if any, specified in such Certificate make the payments, if any, and the
deposits, if any, into the Senior Security Account as specified in the
Certificate. The deposits, if any, to be made to the Margin Account shall be
made by the Custodian in accordance with the terms and conditions of the Margin
Account Agreement.
6. Whenever a Futures Contract Option which is written by the Fund and which is a put is exercised, the Fund shall promptly deliver to the Custodian a Certificate specifying:
(a) the Series to which such Option was specifically allocated; (b) the particular Futures Contract Option exercised; (c) the type of Futures Contract underlying such Futures Contract Option; (d) the name of the broker or futures commission merchant through whom such Futures Contract Option is exercised; (e) the net total amount, if any, payable to the Fund upon such exercise; (f) the net total amount, if any, payable by the Fund upon such exercise; and (g) the amount and kind of Securities and/or cash to be withdrawn from or deposited in, the Senior Security Account for such Series, if any. The Custodian shall, upon its receipt of the net total amount payable to the Fund, if any, specified in the Certificate, make out of the moneys and Securities specifically allocated to such Series, the payments, if any, and the deposits, if any, into the Senior Security Account as specified in the Certificate. The deposits to and/or withdrawals from the Margin Account, if any, shall be made by the Custodian in accordance with the terms and conditions of the Margin Account Agreement.
7. Whenever the Fund purchases any Futures Contract Option identical to a
previously written Futures Contract Option described in this Article in order to
liquidate its position as a writer of such Futures Contract Option, the Fund
shall promptly deliver to the Custodian a Certificate specifying with respect to
the Futures Contract Option being purchased: (a) the Series to which such Option
is specifically allocated; (b) that the transaction is a closing transaction;
(c) the type of Future Contract and such other information as may be necessary
to identify the Futures Contract underlying the Futures Option Contract; (d) the
exercise price; (e) the premium to be paid by the Fund; (f) the expiration date;
(g) the name of the broker or futures commission merchant to whom the premium is
to be paid; and (h) the amount of cash and/or the amount and kind of Securities,
if any, to be withdrawn from the Senior Security Account for such Series. The
Custodian shall effect the withdrawals from the Senior Security Account
specified in the Certificate. The withdrawals, if any, to be made from the
Margin Account shall be made by the Custodian in accordance with the terms and
conditions of the Margin Account Agreement.
8. Upon the expiration, exercise, or consummation of a closing transaction with respect to, any Futures Contract Option written or purchased by the Fund and described in this Article, the Custodian shall (a) delete such Futures Contract Option from the statements delivered to the Fund pursuant to paragraph 3 of Article III herein and, (b) make such withdrawals from and/or in the case of an exercise such deposits into the Senior Security Account as may be specified in a Certificate. The deposits to and/or withdrawals from the Margin Account, if any, shall be made by the Custodian in accordance with the terms and conditions of the Margin Account Agreement.
9. Futures Contracts acquired by the Funds through the exercise of a Futures Contract Option described in this Article shall be subject to Article VI hereof.
ARTICLE VIII.
SHORT SALES
1. Promptly after any short sales by any Series of the Fund, the Fund shall promptly deliver to the Custodian a Certificate specifying: (a) the Series for which such short sale was made; (b) the name of the issuer and the title of the Security; (c) the number of shares or principal amount sold, and accrued interest or dividends, if any; (d) the dates of the sale and settlement; (e) the sale price per unit; (f) the total amount credited to the Fund upon such sale, if any, (g) the amount of cash and/or the amount and kind of Securities, if any, which are to be deposited in a Margin Account and the name in which such Margin Account has been or is to be established; (h) the amount of cash and/or the amount and kind of Securities, if any, to be deposited in a Senior Security Account, and (i) the name of the broker through whom such short sale was made. The Custodian shall upon its receipt of a statement from such broker confirming such sale and that the total amount credited to the Fund upon such sale, if any, as specified in the Certificate is held by such broker for the account of the Custodian (or any nominee of the Custodian) as custodian of the Fund, issue a receipt or make the deposits into the Margin Account and the Senior Security Account specified in the Certificate.
2. In connection with the closing-out of any short sale, the Fund shall
promptly deliver to the Custodian a Certificate specifying with respect to each
such closing out: (a) the Series for which such transaction is being made; (b)
the name of the issuer and the title of the Security; (c) the number of shares
or the principal amount, and accrued interest or dividends, if any, required to
effect such closing-out to be delivered to the broker; (d) the dates of
closing-out and settlement; (e) the purchase price per unit; (f) the net total
amount payable to the Fund upon such closing-out; (g) the net total amount
payable to the broker upon such closing-out; (h) the amount of cash and the
amount and kind of Securities to be withdrawn, if any, from the Margin Account;
(i) the amount of cash and/or the amount and kind of Securities, if any, to be
withdrawn from the Senior Security Account; and (j) the name of the broker
through whom the Fund is effecting such closing-out. The Custodian shall, upon
receipt of the net total amount payable to the Fund upon such closing-out, and
the return and/ or cancellation of the receipts, if any, issued by the Custodian
with respect to the short sale being closed-out, pay out of the moneys held for
the account of the Fund to the broker the net total amount payable to the
broker, and make the withdrawals from the Margin Account and the
Senior Security Account, as the same are specified in the Certificate.
ARTICLE IX.
REVERSE REPURCHASE AGREEMENTS
1. Promptly after the Fund enters a Reverse Repurchase Agreement with
respect to Securities and money held by the Custodian hereunder, the Fund shall
deliver to the Custodian a Certificate, or in the event such Reverse Repurchase
Agreement is a Money Market Security, a Certificate or Oral Instructions
specifying: (a) the Series for which the Reverse Repurchase Agreement is
entered; (b) the total amount payable to the Fund in connection with such
Reverse Repurchase Agreement and specifically allocated to such Series; (c) the
broker or dealer through or with whom the Reverse Repurchase Agreement is
entered; (d) the amount and kind of Securities to be delivered by the Fund to
such broker or dealer; (e) the date of such Reverse Repurchase Agreement; and
(f) the amount of cash and/or the amount and kind of Securities, if any,
specifically allocated to such Series to be deposited in a Senior Security
Account for such Series in connection with such Reverse Repurchase Agreement.
The Custodian shall, upon receipt of the total amount payable to the Fund
specified in the Certificate, Oral Instructions, or Written Instructions make
the delivery to the broker or dealer, and the deposits, if any, to the Senior
Security Account, specified in such Certificate or Oral Instructions.
2. Upon the termination of a Reverse Repurchase Agreement described in
preceding paragraph 1 of this Article, the Fund shall promptly deliver a
Certificate or, in the event such Reverse Repurchase Agreement is a Money Market
Security, a Certificate or Oral Instructions to the Custodian specifying: (a)
the Reverse Repurchase Agreement being terminated and the Series for which same
was entered; (b) the total amount payable by the Fund in connection with such
termination; (c) the amount and kind of Securities to be received by the Fund
and specifically allocated to such Series in connection with such termination;
(d) the date of termination; (e) the name of the broker or dealer with or
through whom the Reverse Repurchase Agreement is to be terminated; and (f) the
amount of cash and/or the amount and kind of Securities to be withdrawn from the
Senior Securities Account for such Series. The Custodian shall, upon receipt of
the amount and kind of Securities to be received by the Fund specified in the
Certificate or Oral Instructions, make the payment to the broker or dealer, and
the withdrawals, if any, from the Senior Security Account, specified in such
Certificate or Oral Instructions.
ARTICLE X.
LOAN OF PORTFOLIO SECURITIES OF THE FUND
1. Promptly after each loan of portfolio Securities specifically allocated
to a Series held by the Custodian hereunder, the Fund shall deliver or cause to
be delivered to the Custodian a Certificate specifying with respect to each such
loan: (a) the Series to which the loaned Securities are specifically allocated;
(b) the name of the issuer and the title of the Securities, (c) the number of
shares or the principal amount loaned, (d) the date of loan and delivery, (e)
the total amount to be delivered to the Custodian against the loan of the
Securities, including the amount of cash collateral and the premium, if any,
separately identified, and (f) the name of the broker, dealer, or financial
institution to which the loan was made. The Custodian shall deliver the
Securities thus designated to the broker, dealer or financial institution to
which the loan was made upon receipt of the total amount designated as to be
delivered against the loan of Securities. The Custodian may accept payment in
connection with a delivery otherwise than through the Book-Entry System or
Depository only in the form of a certified or bank cashier's check payable to
the order of the Fund or the Custodian drawn on New York Clearing House funds
and may deliver Securities in accordance with the customs prevailing among
dealers in securities.
2. Promptly after each termination of the loan of Securities by the Fund,
the Fund shall deliver or cause to be delivered to the Custodian a Certificate
specifying with respect to each such loan termination and return of Securities:
(a) the Series to which the loaned Securities are specifically allocated; (b)
the name of the issuer and the title of the Securities to be returned, (c) the
number of shares or the principal amount to be returned, (d) the date of
termination, (e) the total amount to be delivered by the Custodian (including
the cash collateral for such Securities minus any offsetting credits as
described in said Certificate), and (f) the name of the broker, dealer, or
financial institution from which the Securities will be returned. The Custodian
shall receive all Securities returned from the broker, dealer, or financial
institution to which such Securities were loaned and upon receipt thereof shall
pay, out of the moneys held for the account of the Fund, the total amount
payable upon such return of Securities as set forth in the Certificate.
ARTICLE XI.
CONCERNING MARGIN ACCOUNTS, SENIOR SECURITY
ACCOUNTS, AND COLLATERAL ACCOUNTS
1. The Custodian shall, from time to time, make such deposits to, or withdrawals from, a Senior Security Account as specified in a Certificate received by the Custodian. Such Certificate shall specify the Series for which such deposit or withdrawal is to be made and the amount of cash and/or the amount and kind of Securities specifically allocated to such Series to be deposited in, or withdrawn from, such Senior Security Account for such Series. In the event that the Fund fails to specify in a Certificate the Series, the name of the issuer, the title and the number of shares or the principal amount of any particular Securities to be deposited by the Custodian into, or withdrawn from, a Senior Securities Account, the Custodian shall be under no obligation to make any such deposit or withdrawal and shall so notify the Fund.
2. The Custodian shall make deliveries or payments from a Margin Account to the broker, dealer, futures commission merchant or Clearing Member in whose name, or for whose benefit, the account was established as specified in the Margin Account Agreement.
3. Amounts received by the Custodian as payments or distributions with respect to Securities deposited in any Margin Account shall be dealt with in accordance with the terms and conditions of the Margin Account Agreement.
4. The Custodian shall have a continuing lien and security interest in and to any property at any time held by the Custodian in any Collateral Account described herein. In accordance with applicable law the Custodian may enforce its lien and realize on any such property whenever the Custodian has made payment or delivery pursuant to any Put Option guarantee letter or similar document or any receipt issued hereunder by the Custodian. In the event the Custodian should realize on any such property net proceeds which are less than the Custodian's obligations under any Put Option guarantee letter or similar document or any receipt, such deficiency shall be a debt owed the Custodian by the Fund within the scope of Article XIV herein.
5. On each business day the Custodian shall furnish the Fund with a statement with respect to each Margin Account in which money or Securities are held specifying as of the close of business on the previous business day: (a) the name of the Margin Account; (b) the amount and kind of Securities held therein; and (c) the amount of money held therein. The Custodian shall make available upon request to any broker, dealer, or futures commission merchant specified in the name of a Margin Account a copy of the statement furnished the Fund with respect to such Margin Account.
6. Promptly after the close of business on each business day in which cash and/or Securities are maintained in a Collateral Account for any Series, the Custodian shall furnish the Fund with a statement with respect to such Collateral Account specifying the amount of cash and/or the amount and kind of Securities held therein. No later than the close of business next succeeding the delivery to the Fund of such statement, the Fund shall furnish to the Custodian a Certificate or Written Instructions specifying the then market value of the Securities described in such statement. In the event such then market value is indicated to be less than the Custodian's obligation with respect to any outstanding Put Option guarantee letter or similar document, the Fund shall promptly specify in a Certificate the additional cash and/or Securities to be deposited in such Collateral Account to eliminate such deficiency.
ARTICLE XII.
PAYMENT OF DIVIDENDS OR DISTRIBUTIONS
1. The Fund shall furnish to the Custodian a copy of the resolution of the
Board of Directors of the Fund, certified by the Secretary or any Assistant
Secretary, either (i) setting forth with respect to the Series specified therein
the date of the declaration of a dividend or distribution, the date of payment
thereof, the record date as of which shareholders entitled to payment shall be
determined, the amount payable per Share of such Series to the shareholders of
record as of that date and the total amount payable to the Dividend Agent and
any sub-dividend agent or co-dividend agent of the Fund on the payment date, or
(ii) authorizing with respect to the Series specified therein the declaration of
dividends and distributions on a daily basis and authorizing the Custodian to
rely on Oral Instructions or a Certificate setting forth the date of the
declaration of such dividend or distribution, the date of payment thereof, the
record date as of which shareholders entitled to payment shall be determined,
the amount payable per Share of such Series to the shareholders of record as of
that date and the total amount payable to the Dividend Agent on the payment
date.
2. Upon the payment date specified in such resolution, Oral Instructions or Certificate, as the case may be, the Custodian shall pay out of the moneys held for the account of each Series the total amount payable to the Dividend Agent and any sub-dividend agent or co-dividend agent of the Fund with respect to such Series.
ARTICLE XIII.
SALE AND REDEMPTION OF SHARES
1. Whenever the Fund shall sell any Shares, it shall deliver to the Custodian a Certificate duly specifying:
(a) The Series, the number of Shares sold, trade date, and price; and
(b) The amount of money to be received by the Custodian for the sale of such Shares and specifically allocated to the separate account in the name of such Series.
2. Upon receipt of such money from the Transfer Agent, the Custodian shall credit such money to the separate account in the name of the Series for which such money was received.
3. Upon issuance of any Shares of any Series described in the foregoing provisions of this Article, the Custodian shall pay, out of the money held for the account of such Series, all original issue or other taxes required to be paid by the Fund in connection with such issuance upon the receipt of a Certificate specifying the amount to be paid.
4. Whenever the Fund desires the Custodian to make payment out of the money held by the Custodian hereunder in connection with a redemption of any Shares, it shall furnish to the Custodian:
(a) A resolution by the Board of Directors of the Fund directing the Transfer Agent to redeem the Shares; and
(b) A Certificate specifying the number and Series of Shares redeemed; and
(c) The amount to be paid for such Shares.
5. Upon receipt from the Transfer Agent of an advice setting forth the Series and number of Shares received by the Transfer Agent for redemption and that such Shares are in good form for redemption, the Custodian shall make payment to the Transfer Agent out of the moneys held in the separate account in the name of the Series the total amount specified in the Certificate issued pursuant to the foregoing paragraph 4 of this Article.
ARTICLE XIV.
OVERDRAFTS OR INDEBTEDNESS
1. If the Custodian, should in its sole discretion advance funds on behalf of any Series which results in an overdraft because the moneys held by the Custodian in the separate account for such Series shall be insufficient to pay the total amount payable upon a purchase of Securities specifically allocated to such Series, as set forth in a Certificate or Oral Instructions, or which results in an overdraft in the separate account of such Series for some other reason, or if the Fund is for any other reason indebted to the Custodian with respect to a Series, including any indebtedness to The Bank of New York under the Fund's Cash Management and Related Services Agreement, (except a borrowing for investment or for temporary or emergency purposes using Securities as collateral pursuant to a separate agreement and subject to the provisions of paragraph 2 of this Article), such overdraft or indebtedness shall be deemed to be a loan made by the Custodian to the Fund for such Series payable on demand and shall bear interest from the date incurred at a rate per annum (based on a 360-day year for the actual number of days involved) equal to 1/2% over Custodian's prime commercial lending rate in effect from time to time, such rate to be adjusted on the effective date of any change in such prime commercial lending rate but in no event to be less than 6% per annum. In addition, the Fund hereby agrees that the Custodian shall have a continuing lien and security interest in and to any property specifically allocated to such Series at any time held by it for the benefit of such Series or in which the Fund may have an interest which is then in the Custodian's possession or control or in possession or control of any third party acting in the Custodian's behalf. The Fund authorizes the Custodian, in its sole discretion, at any time to charge any such overdraft or indebtedness together with interest due thereon against any balance of account standing to such Series' credit on the Custodian's books. In addition, the Fund hereby covenants that on each Business Day on which either it intends to enter a Reverse Repurchase Agreement and/ or otherwise borrow from a third party, or which next succeeds a Business Day on which at the close of business the Fund had outstanding a Reverse Repurchase Agreement or such a borrowing, it shall prior to 9 a.m., New York City time, advise the Custodian, in writing, of each such borrowing, shall specify the Series to which the same relates, and shall not incur any indebtedness not so specified other than from the Custodian.
2. The Fund will cause to be delivered to the Custodian by any bank
(including, if the borrowing is pursuant to a separate agreement, the Custodian)
from which it borrows money for investment or for temporary or emergency
purposes using Securities held by the Custodian hereunder as collateral for
such borrowings, a notice or undertaking in the form currently employed by any such bank setting forth the amount which such bank will loan to the Fund against delivery of a stated amount of collateral. The Fund shall promptly deliver to the Custodian a Certificate specifying with respect to each such borrowing: (a) the Series to which such borrowing relates; (b) the name of the bank, (c) the amount and terms of the borrowing, which may be set forth by incorporating by reference an attached promissory note, duly endorsed by the Fund, or other loan agreement, (d) the time and date, if known, on which the loan is to be entered into, (e) the date on which the loan becomes due and payable, (f) the total amount payable to the Fund on the borrowing date, (g) the market value of Securities to be delivered as collateral for such loan, including the name of the issuer, the title and the number of shares or the principal amount of any particular Securities, and (h) a statement specifying whether such loan is for investment purposes or for temporary or emergency purposes and that such loan is in conformance with the Investment Company Act of 1940 and the Fund's prospectus. The Custodian shall deliver on the borrowing date specified in a Certificate the specified collateral and the executed promissory note, if any, against delivery by the lending bank of the total amount of the loan payable, provided that the same conforms to the total amount payable as set forth in the Certificate. The Custodian may, at the option of the lending bank, keep such collateral in its possession, but such collateral shall be subject to all rights therein given the lending bank by virtue of any promissory note or loan agreement. The Custodian shall deliver such Securities as additional collateral as may be specified in a Certificate to collateralize further any transaction described in this paragraph. The Fund shall cause all Securities released from collateral status to be returned directly to the Custodian, and the Custodian shall receive from time to time such return of collateral as may be tendered to it. In the event that the Fund fails to specify in a Certificate the Series, the name of the issuer, the title and number of shares or the principal amount of any particular Securities to be delivered as collateral by the Custodian, the Custodian shall not be under any obligation to deliver any Securities.
ARTICLE XV.
TERMINAL LINK
1. At no time and under no circumstances shall the Fund be obligated to have or utilize the Terminal Link, and the provisions of this Article shall apply if, but only if, the Fund in its sole and absolute discretion elects to utilize the Terminal Link to transmit Certificates to the Custodian.
2. The Terminal Link shall be utilized by the Fund only for the purpose of the Fund providing Certificates to the Custodian with respect to transactions involving Securities or for the transfer of money to be applied to the payment of
dividends, distributions or redemptions of Fund Shares, and shall be utilized by the Custodian only for the purpose of providing notices to the Fund. Such use shall commence only after the Fund shall have delivered to the Custodian a Certificate substantially in the form of Exhibit D and shall have established access codes. Each use of the Terminal Link by the Fund shall constitute a representation and warranty that the Terminal Link is being used only for the purposes permitted hereby, that at least two Officers have each utilized an access code, that such safekeeping procedures have been established by the Fund, and that such use does not contravene the Investment Company Act of 1940, as amended, or the rules or regulations thereunder.
3. The Fund shall obtain and maintain at its own cost and expense all equipment and services, including, but not limited to communications services, necessary for it to utilize the Terminal Link, and the Custodian shall not be responsible for the reliability or availability of any such equipment or services.
4. The Fund acknowledges that any data bases made available as part of, or through the Terminal Link and any proprietary data, software, processes, information and documentation (other than any such which are or become part of the public domain or are legally required to be made available to the public) (collectively, the "Information"), are the exclusive and confidential property of the Custodian. The Fund shall, and shall cause others to which it discloses the Information, to keep the Information confidential by using the same care and discretion it uses with respect to its own confidential property and trade secrets, and shall neither make nor permit any disclosure without the express prior written consent of the Custodian.
5. Upon termination of this Agreement for any reason, the Fund shall return to the Custodian any and all copies of the Information which are in the Fund's possession or under its control, or which the Fund distributed to third parties. The provisions of this Article shall not affect the copyright status of any of the Information which may be copyrighted and shall apply to all Information whether or not copyrighted.
6. The Custodian reserves the right to modify the Terminal Link from time to time without notice to the Fund except that the Custodian shall give the Fund notice not less than 75 days in advance of any modification which would materially adversely affect the Fund's operation, and the Fund agrees that the Fund shall not modify or attempt to modify the Terminal Link without the Custodian's prior written consent. The Fund acknowledges that any software or procedures provided the Fund as part of the Terminal Link are the property of the Custodian and, accordingly, the Fund agrees that any modifications to the Terminal Link, whether by the Fund, or by
the Custodian and whether with or without the Custodian's consent, shall become the property of the Custodian.
7. Neither the Custodian nor any manufacturers and suppliers it utilizes or the Fund utilizes in connection with the Terminal Link makes any warranties or representations, express or implied, in fact or in law, including but not limited to warranties of merchantability and fitness for a particular purpose.
8. The Fund will cause its Officers and employees to treat the authorization codes and the access codes applicable to Terminal Link with extreme care, and irrevocably authorizes the Custodian to act in accordance with and rely on Certificates received by it through the Terminal Link. The Fund acknowledges that it is its responsibility to assure that only its Officers use the Terminal Link on its behalf, and that a Custodian shall not be responsible nor liable for use of the Terminal Link on the Fund's behalf by persons other than such persons or Officers, or by only a single Officer, nor for any alteration, omission, or failure to promptly forward.
9 (a). Except as otherwise specifically provided in Section 9(b) of this Article, the Custodian shall have no liability for any losses, damages, injuries, claims, costs or expenses arising out of or in connection with any failure, malfunction or other problem relating to the Terminal Link except for money damages suffered as the direct result of the negligence of the Custodian in an amount not exceeding for any incident $25,000 provided, however, that the Custodian shall have no liability under this Section 9 if the Fund fails to comply with the provisions of Section 11.
9 (b). The Custodian's liability for its negligence in executing or failing to execute in accordance with a Certificate received through Terminal Link shall be only with respect to a transfer of funds which is not made in accordance with such Certificate after such Certificate shall have been duly acknowledged by the Custodian, and shall be contingent upon the Fund complying with the provisions of Section 12 of this Article, and shall be limited to (i) restoration of the principal amount mistransferred, if and to the extent that the Custodian would be required to make such restoration under applicable law, and (ii) the lesser of (A) a Fund's actual pecuniary loss incurred by reason of its loss of use of the mistransferred funds or the funds which were not transferred, as the case may be, or (B) compensation for the loss of the use of the mistransferred funds or the funds which were not transferred, as the case may be, at a rate per annum equal to the average federal funds rate as computed from the Federal Reserve Bank of New York's daily determination of the effective rate for federal funds, for the period during which a Fund has lost use of such funds. In no event shall the Custodian have any liability for failing to execute in
accordance with a Certificate a transfer of funds where the Certificate is received by the Custodian through Terminal Link other than through the applicable transfer module for the particular instructions contained in such Certificate.
10. Without limiting the generality of the foregoing, in no event shall the Custodian or any manufacturer or supplier of its computer equipment, software or services relating to the Terminal Link be responsible for any special, indirect, incidental or consequential damages which the Fund may incur or experience by reason of its use of the Terminal Link even if the Custodian or any manufacturer or supplier has been advised of the possibility of such damages, nor with respect to the use of the Terminal Link shall the Custodian or any such manufacturer or supplier be liable for acts of God, or with respect to the following to the extent beyond such person's reasonable control: machine or computer breakdown or malfunction, interruption or malfunction of communication facilities, labor difficulties or any other similar or dissimilar cause.
11. The Fund shall notify the Custodian of any errors, omissions or interruptions in, or delay or unavailability of, the Terminal Link as promptly as practicable, and in any event within 24 hours after the earliest of (i) discovery thereof, (ii) the Business Day on which discovery should have occurred through the exercise of reasonable care and (iii) in the case of any error, the date of actual receipt of the earliest notice which reflects such error, it being agreed that discovery and receipt of notice may only occur on a business day. The Custodian shall promptly advise the Fund whenever the Custodian learns of any errors, omissions or interruption in, or delay or unavailability of, the Terminal Link.
12. The Custodian shall verify to the Fund, by use of the Terminal Link, receipt of each Certificate the Custodian receives through the Terminal Link, and in the absence of such verification the Custodian shall not be liable for any failure to act in accordance with such Certificate and the Fund may not claim that such Certificate was received by the Custodian. Such verification, which may occur after the Custodian has acted upon such Certificate, shall be accomplished on the same day on which such Certificate is received.
ARTICLE XVI.
DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY
OF ANY SERIES HELD OUTSIDE OF THE UNITED STATES
1. The Custodian is authorized and instructed to employ, as sub-custodian
for each Series' Foreign Securities (as such term is defined in paragraph (c)
(1) of Rule 17f-5 under the Investment Company Act of 1940, as amended) and
other assets, the foreign banking institutions and foreign securities
depositories and clearing agencies designated on Schedule I hereto ("Foreign
Sub-Custodians") to carry out their respective responsibilities in accordance
with the terms of the sub-custodian agreement between each such Foreign Sub-
Custodian and the Custodian, copies of which have been previously delivered to
the Fund and receipt of which is hereby acknowledged (each such agreement, a
"Foreign Sub-Custodian Agreement"). The Custodian shall be liable for the acts
and omissions of each Foreign Sub-Custodian constituting negligence or willful
misconduct in the conduct of its responsibilities under the terms of the Foreign
Sub-Custodian Agreement. Upon receipt of a Certificate, together with a
certified resolution substantially in the form attached as Exhibit E of the
Fund's Board of Directors, the Fund may designate any additional foreign
sub-custodian with which the Custodian has an agreement for such entity to act
as the Custodian's agent, as its sub-custodian and any such additional foreign
sub-custodian shall be deemed added to Schedule I. Upon receipt of a Certificate
from the Fund, the Custodian shall cease the employment of any one or more
Foreign Sub-Custodians for maintaining custody of the Fund's assets and such
Foreign Sub-Custodian shall be deemed deleted from Schedule I.
2. Each Foreign Sub-Custodian Agreement shall be substantially in the form previously delivered to the Fund and will not be amended in a way that materially adversely affects the Fund without the Fund's prior written consent.
3. The Custodian shall identify on its books as belonging to each Series of the Fund the Foreign Securities of such Series held by each Foreign Sub-Custodian. At the election of the Fund, it shall be entitled to be subrogated to the rights of the Custodian with respect to any claims by the Fund or any Series against a Foreign Sub-Custodian as a consequence of any loss, damage, cost, expense, liability or claim sustained or incurred by the Fund or any Series if and to the extent that the Fund or such Series has not been made whole for any such loss, damage, cost, expense, liability or claim.
4. Upon request of the Fund, the Custodian will, consistent with the terms of the applicable Foreign Sub-Custodian Agreement, use reasonable efforts to arrange for the independent accountants of the Fund to be afforded access to the books and records of any Foreign Sub-Custodian insofar as such books and records relate to the performance of such Foreign Sub-Custodian under its agreement with the Custodian on behalf of the Fund.
5. The Custodian will supply to the Fund from time to time, as mutually agreed upon, statements in respect of the securities and other assets of each Series held by Foreign Sub-Custodians, including but not limited to, an identification of entities having possession of each Series' Foreign Securities and other assets, and advices or notifications of any transfers of Foreign Securities to or from each custodial account maintained by a Foreign Sub- Custodian for the Custodian on behalf of the Series.
6. The Custodian shall furnish annually to the Fund, as mutually agreed upon, information concerning the Foreign Sub-Custodians employed by the Custodian. Such information shall be similar in kind and scope to that furnished to the Fund in connection with the Fund's initial approval of such Foreign Sub-Custodians and, in any event, shall include information pertaining to (i) the Foreign Custodians' financial strength, general reputation and standing in the countries in which they are located and their ability to provide the custodial services required, and (ii) whether the Foreign Sub-Custodians would provide a level of safeguards for safekeeping and custody of securities not materially different from those prevailing in the United States. The Custodian shall monitor the general operating performance of each Foreign Sub-Custodian, and at least annually obtain and review the annual financial report published by such Foreign Sub-Custodian to determine that it meets the financial criteria of an "Eligible Foreign Custodian" under Rule 17f-5(c)(2)(i) or (ii). The Custodian will promptly inform the Fund in the event that the Custodian learns that a Foreign Sub-Custodian no longer satisfies the financial criteria of an "Eligible Foreign Custodian" under such Rule. The Custodian agrees that it will use reasonable care in monitoring compliance by each Foreign Sub-Custodian with the terms of the relevant Foreign Sub-Custodian Agreement and that if it learns of any breach of such Foreign Sub-Custodian Agreement believed by the Custodian to have a material adverse effect on the Fund or any Series it will promptly notify the Fund of such breach. The Custodian also agrees to use reasonable and diligent efforts to enforce its rights under the relevant Foreign Sub-Custodian Agreement.
7. The Custodian shall transmit promptly to the Fund all notices, reports or other written information received pertaining to the Fund's Foreign Securities, including without limitation, notices of corporate action, proxies and proxy solicitation materials.
8. Notwithstanding any provision of this Agreement to the contrary, settlement and payment for securities received for the account of any Series and delivery of securities maintained for the account of such Series may be effected in accordance with the customary or established securities trading or securities processing practices and procedures in the jurisdiction or market in which the transaction occurs, including, without limitation, delivery of securities to the purchaser thereof or to a dealer therefor (or an agent for such purchaser or dealer) against a receipt with the expectation of receiving later payment for such securities from such purchaser or dealer.
ARTICLE XVII.
CONCERNING THE CUSTODIAN
1. Except as hereinafter provided, or as provided in Article XVI neither the Custodian nor its nominee shall be liable for any loss or damage, including counsel fees, resulting from its action or omission to act or otherwise, either hereunder or under any Margin Account Agreement, except for any such loss or damage arising out of its own negligence or willful misconduct. In no event shall the Custodian be liable to the Fund or any third party for special, indirect or consequential damages or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. The Custodian may, with respect to questions of law arising hereunder or under any Margin Account Agreement, apply for and obtain the advice and opinion of counsel to the Fund or of its own counsel, at the expense of the Fund, and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice or opinion. The Custodian shall be liable to the Fund for any loss or damage resulting from the use of the Book-Entry System or any Depository arising by reason of any negligence or willful misconduct on the part of the Custodian or any of its employees or agents.
2. Without limiting the generality of the foregoing, the Custodian shall be under no obligation to inquire into, and shall not be liable for:
(a) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor;
(b) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor;
(c) The legality of the declaration or payment of any dividend by the Fund;
(d) The legality of any borrowing by the Fund using Securities as collateral;
(e) The legality of any loan of portfolio Securities, nor shall the Custodian be under any duty or obligation to see to it that any cash collateral delivered to it by a broker, dealer, or financial institution or held by it at any time as a result of such loan of portfolio Securities of the Fund is adequate collateral for the Fund against any loss it might sustain as a result of such loan. The Custodian specifically, but not by way of limitation, shall not be under any duty or obligation periodically to check or notify the Fund that the amount of such cash collateral held by it for the Fund is sufficient collateral for the Fund, but such duty or obligation shall be the sole responsibility of the Fund. In addition, the Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent pursuant to Article XIV of this Agreement makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however, that the Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; or
(f) The sufficiency or value of any amounts of money and/or Securities held in any Margin Account, Senior Security Account or Collateral Account in connection with transactions by the Fund. In addition, the Custodian shall be under no duty or obligation to see that any broker, dealer, futures commission merchant or Clearing Member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or Clearing Member, to see that any payment received by the Custodian from any broker, dealer, futures commission merchant or Clearing Member is the amount the Fund is entitled to receive, or to notify the Fund of the Custodian's receipt or non-receipt of any such payment.
3. The Custodian shall not be liable for, or considered to be the Custodian of, any money, whether or not represented by any check, draft, or other instrument for the payment of money, received by it on behalf of the Fund until the Custodian actually receives and collects such money directly or by the final crediting of the account representing the Fund's interest at the Book-Entry System or the Depository.
4. The Custodian shall have no responsibility and shall not be liable for ascertaining or acting upon any calls, conversions, exchange offers, tenders, interest rate changes or similar matters relating to Securities held in the Depository, unless the Custodian shall have actually received
timely notice from the Depository. In no event shall the Custodian have any responsibility or liability for the failure of the Depository to collect, or for the late collection or late crediting by the Depository of any amount payable upon Securities deposited in the Depository which may mature or be redeemed, retired, called or otherwise become payable. However, upon receipt of a Certificate from the Fund of an overdue amount on Securities held in the Depository the Custodian shall make a claim against the Depository on behalf of the Fund, except that the Custodian shall not be under any obligation to appear in, prosecute or defend any action suit or proceeding in respect to any Securities held by the Depository which in its opinion may involve it in expense or liability, unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required.
5. The Custodian shall not be under any duty or obligation to take action to effect collection of any amount due to the Fund from the Transfer Agent of the Fund nor to take any action to effect payment or distribution by the Transfer Agent of the Fund of any amount paid by the Custodian to the Transfer Agent of the Fund in accordance with this Agreement.
6. The Custodian shall not be under any duty or obligation to take action to effect collection of any amount, if the Securities upon which such amount is payable are in default, or if payment is refused after due demand or presentation, unless and until (i) it shall be directed to take such action by a Certificate and (ii) it shall be assured to its satisfaction of reimbursement of its costs and expenses in connection with any such action.
7. The Custodian may in addition to the employment of Foreign Sub-Custodians pursuant to Article XVI appoint one or more banking institutions as Depository or Depositories, as Sub-Custodian or Sub-Custodians, or as Co-Custodian or Co-Custodians including, but not limited to, banking institutions located in foreign countries, of Securities and moneys at any time owned by the Fund, upon such terms and conditions as may be approved in a Certificate or contained in an agreement executed by the Custodian, the Fund and the appointed institution.
8. The Custodian shall not be under any duty or obligation (a) to ascertain whether any Securities at any time delivered to, or held by it or by any Foreign Sub-Custodian, for the account of the Fund and specifically allocated to a Series are such as properly may be held by the Fund or such Series under the provisions of its then current prospectus, or (b) to ascertain whether any transactions by the Fund, whether or not involving the Custodian, are such transactions as may properly be engaged in by the Fund.
9. The Custodian shall be entitled to receive and the Fund agrees to pay to the Custodian all out-of-pocket expenses and such compensation as may be agreed upon from time to time between the Custodian and the Fund. The Custodian may charge such compensation and any expenses with respect to a Series incurred by the Custodian in the performance of its duties pursuant to such agreement against any money specifically allocated to such Series. Unless and until the Fund instructs the Custodian by a Certificate to apportion any loss, damage, liability or expense among the Series in a specified manner, the Custodian shall also be entitled to charge against any money held by it for the account of a Series such Series' pro rata share (based on such Series net asset value at the time of the charge to the aggregate net asset value of all Series at that time) of the amount of any loss, damage, liability or expense, including counsel fees, for which it shall be entitled to reimbursement under the provisions of this Agreement. The expenses for which the Custodian shall be entitled to reimbursement hereunder shall include, but are not limited to, the expenses of sub-custodians and foreign branches of the Custodian incurred in settling outside of New York City transactions involving the purchase and sale of Securities of the Fund.
10. The Custodian shall be entitled to rely upon any Certificate, notice or other instrument in writing received by the Custodian and reasonably believed by the Custodian to be a Certificate. The Custodian shall be entitled to rely upon any Oral Instructions actually received by the Custodian hereinabove provided for. The Fund agrees to forward to the Custodian a Certificate or facsimile thereof confirming such Oral Instructions in such manner so that such Certificate or facsimile thereof is received by the Custodian, whether by hand delivery, telecopier or other similar device, or otherwise, by the close of business of the same day that such Oral Instructions are given to the Custodian. The Fund agrees that the fact that such confirming instructions are not received by the Custodian shall in no way affect the validity of the transactions or enforceability of the transactions hereby authorized by the Fund. The Fund agrees that the Custodian shall incur no liability to the Fund in acting upon Oral Instructions given to the Custodian hereunder concerning such transactions provided such instructions reasonably appear to have been received from an Officer.
11. The Custodian shall be entitled to rely upon any instrument, instruction or notice received by the Custodian and reasonably believed by the Custodian to be given in accordance with the terms and conditions of any Margin Account Agreement. Without limiting the generality of the foregoing, the Custodian shall be under no duty to inquire into, and shall not be liable for, the accuracy of any statements or representations contained in any such instrument or other notice including, without limitation, any specification of any
amount to be paid to a broker, dealer, futures commission merchant or Clearing Member.
12. The books and records pertaining to the Fund which are in the possession of the Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the Investment Company Act of 1940, as amended, and other applicable securities laws and rules and regulations. The Fund, or the Fund's authorized representatives, shall have access to such books and records during the Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by the Custodian to the Fund or the Fund's authorized representative, and the Fund shall reimburse the Custodian its expenses of providing such copies. Upon reasonable request of the Fund, the Custodian shall provide in hard copy or on micro-film, whichever the Custodian elects, any records included in any such delivery which are maintained by the Custodian on a computer disc, or are similarly maintained, and the Fund shall reimburse the Custodian for its expenses of providing such hard copy or micro-film.
13. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of the Book-Entry System, the Depository or O. C. C., and with such reports on its own systems of internal accounting control as the Fund may reasonably request from time to time.
14. Subject to the foregoing provisions of this Agreement, including, without limitation, those contained in Article XVI the Custodian may deliver and receive Securities, and receipts with respect to such Securities, and arrange for payments to be made and received by the Custodian in accordance with the customs prevailing from time to time among brokers or dealers in such Securities. When the Custodian is instructed to deliver Securities against payment, delivery of such Securities and receipt of payment therefor may not be completed simultaneously. The Fund assumes all responsibility and liability for all credit risks involved in connection with the Custodian's delivery of Securities pursuant to instructions of the Fund, which responsibility and liability shall continue until final payment in full has been received by the Custodian.
15. The Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied in this Agreement against the Custodian.
ARTICLE XVIII.
TERMINATION
1. Either of the parties hereto may terminate this Agreement by giving to the other party a notice in writing specifying the date of such termination, which shall be not less than ninety (90) days after the date of giving of such notice. In the event such notice is given by the Fund, it shall be accompanied by a copy of a resolution of the Board of Directors of the Fund, certified by the Secretary or any Assistant Secretary, electing to terminate this Agreement and designating a successor custodian or custodians, each of which shall be a bank or trust company having not less than $2,000,000 aggregate capital, surplus and undivided profits. In the event such notice is given by the Custodian, the Fund shall, on or before the termination date, deliver to the Custodian a copy of a resolution of the Board of Directors of the Fund, certified by the Secretary or any Assistant Secretary, designating a successor custodian or custodians. In the absence of such designation by the Fund, the Custodian may designate a successor custodian which shall be a bank or trust company having not less than $2,000,000 aggregate capital, surplus and undivided profits. Upon the date set forth in such notice this Agreement shall terminate, and the Custodian shall upon receipt of a notice of acceptance by the successor custodian on that date deliver directly to the successor custodian all Securities and moneys then owned by the Fund and held by it as Custodian, after deducting all fees, expenses and other amounts for the payment or reimbursement of which it shall then be entitled.
2. If a successor custodian is not designated by the Fund or the Custodian in accordance with the preceding paragraph, the Fund shall upon the date specified in the notice of termination of this Agreement and upon the delivery by the Custodian of all Securities (other than Securities held in the Book-Entry system which cannot be delivered to the Fund) and moneys then owned by the Fund be deemed to be its own custodian and the Custodian shall thereby be relieved of all duties and responsibilities pursuant to this Agreement, other than the duty with respect to Securities held in the Book-Entry System which cannot be delivered to the Fund to hold such Securities hereunder in accordance with this Agreement.
ARTICLE XIX.
MISCELLANEOUS
1. Annexed hereto as Appendix A is a Certificate signed by two of the present Officers of the Fund under its corporate seal, setting forth the names and the signatures of the present Officers of the Fund. The Fund agrees to furnish to
the Custodian a new Certificate in similar form in the event any such present Officer ceases to be an Officer of the Fund, or in the event that other or additional Officers are elected or appointed. Until such new Certificate shall be received, the Custodian shall be fully protected in acting under the provisions of this Agreement upon the signatures of the Officers as set forth in the last delivered Certificate.
2. Any notice or other instrument in writing, authorized or required by this Agreement to be given to the Custodian, shall be sufficiently given if addressed to the Custodian and mailed or delivered to it at its offices at 90 Washington Street, New York, New York 10286, or at such other place as the Custodian may from time to time designate in writing.
3. Any notice or other instrument in writing, authorized or required by this Agreement to be given to the Fund shall be sufficiently given if addressed to the Fund and mailed or delivered to it at its office at the address for the Fund first above written, or at such other place as the Fund may from time to time designate in writing.
4. This Agreement may not be amended or modified in any manner except by a written agreement executed by both parties with the same formality as this Agreement and approved by a resolution of the Board of Directors of the Fund.
5. This Agreement shall extend to and shall be binding upon the parties hereto, and their respective successors and assigns; provided, however, that this Agreement shall not be assignable by the Fund without the written consent of the Custodian, or by the Custodian without the written consent of the Fund, authorized or approved by a resolution of the Fund's Board of Directors.
6. This Agreement shall be construed in accordance with the laws of the State of New York without giving effect to conflict of laws principles thereof. Each party hereby consents to the jurisdiction of a state or federal court situated in New York City, New York in connection with any dispute arising hereunder and hereby waives its right to trial by jury.
7. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute only one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective corporate Officers, thereunto duly authorized and their respective corporate seals to be hereunto affixed, as of the day and year first above written.
MUNIASSET FUND, INC.
[SEAL] By: /s/ Gerald M Richard, Treasurer --------------------------------- GERALD M. RICHARD, TREASURER Attest: /s/ Mark B. Goldfus -------------------------- THE BANK OF NEW YORK [SEAL] By: /s/ Illegible ----------------------------- Attest: /s/ Illegible -------------------------- |
Exhibit 11
Clifford Change Rogers & Wells LLP
200 Park Avenue
New York, New York 10166-0153
Tel +1 212 878 8000
Fax +1 212 878 8375
www.cliffordchance.com
September 10, 2001
MuniAssets Fund, Inc.
800 Scudders Mill Road
Plainsboro, New Jersey 08536
Ladies and Gentlemen:
We have acted as counsel for MuniAssets Fund, Inc. (the "Fund") in connection with the proposed acquisition by the Fund of substantially all of the assets and the assumption of substantially all of the liabilities of Merrill Lynch High Income Municipal Bond Fund, Inc. ("High Income"), in exchange solely for an equal aggregate value of newly issued shares of common stock of the Fund to be distributed thereafter to stockholders of High Income (collectively, the "Reorganization"). This opinion is furnished in connection with the Fund's Registration Statement on Form N-14 under the Securities Act of 1933, as amended (the "Registration Statement"), relating to shares of common stock of the Fund, each with a par value of $0.10 per share (the "Shares"), to be issued in the Reorganization.
As counsel for the Fund, we are familiar with the proceedings taken by it and to be taken by it in connection with the authorization, issuance and sale of the Shares. In addition, we have examined and are familiar with the Articles of Incorporation of the Fund, as amended, the By-Laws of the Fund and such other documents as we have deemed relevant to the matters referred to in this opinion.
Based upon the foregoing, we are of the opinion that subsequent to the approval by the stockholders of the Fund and of High Income of the Agreement and Plan of Reorganization between the Fund and High Income set forth in the joint proxy statement and prospectus constituting a part of the Registration Statement (the "Proxy Statement and Prospectus"), the Shares, upon issuance in the manner referred to in the Registration Statement, for consideration not less than the par value thereof, will be legally issued, fully paid and non-assessable shares of common stock of the Fund.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name in the Proxy Statement and Prospectus constituting a part thereof.
Very truly yours,
/s/ Clifford Chance Rogers & Wells LLP |
Exhibit 13
AGREEMENT, made as of June 14, 1993, between MuniAssets Fund, Inc., a corporation organized and existing under the laws of the State of Maryland (hereinafter referred to as the "Customer"), and The Bank of New York, a New York trust company (hereinafter referred to as the "Bank").
WITNESSETH:
That for and in consideration of the mutual promises hereinafter set forth, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall have the following meanings:
1. "Business Day" shall be deemed to be each day on which the Bank is open for business.
2. "Certificate" shall mean any notice, instruction, or other instrument in writing, authorized or required by this Agreement to be given to the Bank by the Customer which is signed by any Officer, as hereinafter defined, and actually received by the Bank.
3. "Officer" shall be deemed to be the Customer's Chief Executive Officer, President, any Vice President, the Secretary, the Treasurer, the Controller, any Assistant Treasurer and any Assistant Secretary duly authorized by the Board of Directors of the Customer to execute any Certificate, instruction, notice or other instrument on behalf of the Customer and named in a Certificate, as such Certificate may be amended from time to time.
4. "Prospectus" shall mean the last Customer prospectus actually received by the Bank from the Customer with respect to which the Customer has indicated a registration statement under the Securities Act of 1933, as amended, has become effective, including the Statement of Additional Information incorporated by reference therein.
5. "Shares" shall mean all or any part of each class of the shares of capital stock of the Customer which from time to time are authorized and/or issued by the Customer and identified in a Certificate of the Secretary of the Customer under corporate seal, as such Certificate may be amended from time to time.
ARTICLE II
APPOINTMENT OF BANK
1. The Customer hereby constitutes and appoints the Bank as its agent to perform the services described herein and as more particularly described in Schedule I attached hereto (the "Services"), and the Bank hereby accepts appointment as such agent and agrees to perform the Services in accordance with the terms hereinafter set forth.
2. In connection with such appointment, the Customer shall deliver the following documents to the Bank on or about the closing day of the initial public offering:
(a) A certified copy of the Certificate of Incorporation or other document evidencing the Customer's form of organization (the "Charter") and all amendments thereto;
(b) A certified copy of the By-Laws of the Customer;
(c) A certified copy of a resolution of the Board of Directors of the Customer appointing the Bank to perform the Services and authorizing the execution and delivery of this Agreement;
(d) A Certificate signed by the Secretary of the Customer specifying: the number of authorized Shares, the number of such authorized Shares issued and currently outstanding, and the names and specimen signatures of all persons duly authorized by the Board of Directors of the Customer to execute any Certificate on behalf of the Customer, which Certificate may be amended from time to time;
(e) A Specimen Share certificate for each class of Shares in the form approved by the Board of Directors of the Customer, together with a Certificate signed by the Secretary of the Customer as to such approval;
(f) A copy of the Customer's Registration Statement, filed by the Customer with the Securities and Exchange Commission under the Securities Act of 1933, as amended; and
(g) An opinion of counsel for the Customer with respect to the validity of the authorized and outstanding Shares, whether such Shares are fully paid and non-assessable and the status of such Shares under the Securities Act of 1933, as amended, and any other applicable law or regulation (i.e., if subject to registration, that they have been registered and that the Registration Statement has become effective or, if exempt, the specific grounds therefor).
3. The Customer shall furnish the Bank with a sufficient supply of blank Share certificates and from time to time will renew such supply upon request of the Bank. Such blank Share certificates shall be properly signed, by facsimile or otherwise, by officers of the Customer authorized by law or by the By-Laws to sign Share certificates, and, if required, shall bear the corporate seal or a facsimile thereof.
ARTICLE III
AUTHORIZATION AND ISSUANCE OF SHARES
1. The Customer shall deliver to the Bank a certified copy of the amendment to the Charter giving effect to such increase, decrease or change, on or before the effective date of any increase, decrease or other change in the total number of Shares authorized to be issued.
(a) A certified copy of the amendment to the Charter giving effect to such increase, decrease or change;
(b) An opinion of counsel for the Customer with respect to the validity of the Shares and the status of such Shares under the Securities Act of 1933, as amended, and any other applicable federal law or regulations (i.e., if subject to registration, that they have been registered and that the Registration Statement has become effective or, if exempt, the specific grounds therefor); and
(c) In the case of an increase, if the appointment of the Bank was theretofore expressly limited, a certified copy of a resolution of the Board of Directors of the Customer increasing the authority of the Bank.
2. Prior to the issuance of any additional Shares pursuant to stock dividends, stock splits or otherwise, and prior to any reduction in the number of Shares outstanding, the Customer shall deliver the following documents to the Bank:
(a) A certified copy of the resolutions adopted by the Board of Directors and/or the shareholders of the Customer authorizing such issuance of additional Shares of the Customer or such reduction, as the case may be;
(b) A certified copy of the order or consent, if applicable, of each governmental or regulatory authority required by law as a prerequisite to the issuance or reduction of such Shares; and
(c) An opinion of counsel for the Customer with respect to the validity of the Shares and the status of such the Shares under the Securities Act of 1933, as amended, and any other applicable law or regulation (i.e., if subject to registration, that they have been registered and that the Registration Statement has become effective, or, if exempt, the specific grounds therefor).
ARTICLE IV
RECAPITALIZATION OR CAPITAL ADJUSTMENT
1. In the case of any negative stock split, recapitalization or other capital adjustment requiring a change in the form of Share certificates, the Bank will issue Share certificates in the new form in exchange for, or upon transfer of, outstanding Share certificates in the old form, upon receiving:
(a) A Certificate authorizing the issuance of Share certificates in the new form;
(b) A certified copy of any amendment to the Charter with respect to the change;
(c) Specimen Share certificates for each class of Shares in the new form approved by the Board of Directors of the Customer, with a Certificate signed by the Secretary of the Customer as to such approval;
(d) A certified copy of the order or consent of each governmental or regulatory authority required by law as a prerequisite to the issuance of the Shares in the new form, and an opinion of counsel for the Customer that the order or consent of no other governmental or regulatory authority is required; and
(e) An opinion of counsel for the Customer with respect to the validity of the Shares in the new form and the status of such Shares under the Securities Act of 1933, as amended, and any other applicable law or regulation (i.e., if subject to registration that the Shares have been registered and that the Registration Statement has become effective or, if exempt, the specific grounds therefor).
2. The Customer shall furnish the Bank with a sufficient supply of blank Share certificates in the new form, and from time to time will replenish such supply upon the request of the Bank. Such blank Share certificates shall be properly signed, by facsimile or otherwise, by Officers of the Customer authorized by law or by the By-Laws to sign Share Certificates and, if required, shall bear the corporate seal or a facsimile thereof.
ARTICLE V
ISSUANCE AND TRANSFER OF SHARES
1. (a) The Bank will issue Share certificates upon receipt of a Certificate from an Officer, but shall not be required to issue Share certificates after it has received from an appropriate federal or state authority written notification that the sale of Shares has been suspended or discontinued, and the Bank shall be entitled to rely upon such written notification. The Bank shall not be responsible for the payment of any original issue or other taxes required to be paid by the Customer in connection with the issuance of any shares.
(b) Shares will be transferred upon presentation to the Bank of Share certificates in form deemed by the Bank properly endorsed for transfer, accompanied by such documents as the Bank deems necessary to evidence the authority of the person making such transfer, and bearing satisfactory evidence of the payment of applicable stock transfer taxes. In the case of small estates where no administration is contemplated, the Bank may, when furnished with an appropriate surety bond, and without further approval of the Customer, transfer Shares registered in the name of the decedent where the current market value of the Shares being transferred does not exceed such amount as may from time to time be prescribed by the various states. The Bank reserves the right to refuse to transfer Shares until it is satisfied that the endorsements on Share certificates are valid and genuine, and for that purpose it may require, unless otherwise instructed by an Officer of the Customer, a guaranty of signature by a member firm of the New York Stock Exchange or by a bank or trust company acceptable to the Bank. The Bank also reserves the right to refuse to transfer Shares until it is satisfied that the requested transfer is legally authorized, and it shall incur no liability for the refusal in good faith to make transfers which the Bank, in its judgment, deems improper or unauthorized, or until it is satisfied that there is no basis to any claims adverse to such transfer. The Bank may, in effecting transfers of Shares, rely upon those provisions of the Uniform Act for the Simplification of Fiduciary Security Transfers or the Uniform Commercial Code, as the same may be amended from time to time, applicable to the transfer of securities, and the Customer shall indemnify the Bank for any act done or omitted by it in good faith in reliance upon such laws.
(c) All certificates representing Shares that are subject to restrictions on transfer (e.g., securities acquired pursuant to an investment representation, securities held by controlling persons, securities subject to stockholders' agreements, etc.), other than the general restrictions on the transferability of the Shares described in the Prospectus, shall be stamped with a legend describing the extent and conditions of the restrictions or referring to the source of such restrictions. The Bank assumes no responsibility with respect to the transfer of restricted securities where counsel for the Customer advises that such transfer may be properly effected.
(d) Notwithstanding the foregoing or any other provision contained in this Agreement to the contrary, the Bank shall be fully protected by the Customer in not requiring any instruments, documents, assurances, endorsements or guarantees, including, without limitation, any signature guarantees, in connection with a transfer of Shares whenever the Bank reasonably believes that requiring the same would be inconsistent with the transfer procedures as described in the Prospectus.
ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
1. The Customer shall furnish to the Bank a copy of a resolution of its Board of Directors, certified by the Secretary or any Assistant Secretary, either (i) setting forth the date of the declaration of a dividend or distribution, the date of accrual or payment, as the case may be, the record date as of which shareholders entitled to payment, or accrual, as the case may be, shall be determined, the amount per Share of such dividend or distribution, the payment date on which all previously accrued and unpaid dividends are to be paid, and the total amount, if any, payable to the Bank on such payment date, or (ii) authorizing the declaration of dividends and distributions on a periodic basis and authorizing the Bank to rely on a Certificate setting forth the information described in subsection (i) of this paragraph.
2. Prior to the payment date specified in such Certificate or resolution, as the case may be, the Customer shall, in the case of a cash dividend or distribution, pay to the Bank an amount of cash, sufficient for the Bank to make the payment, specified in such Certificate or resolution, to the shareholders of record as of such payment date. The Bank will, upon receipt of any such cash, (i) in the case of shareholders who are participants in a dividend reinvestment and/or cash purchase plan of the Customer, reinvest such cash dividends or distributions in accordance with the terms of such plan, and (ii) in the case of shareholders who are not participants in any such plan, make payment of such cash dividends or distributions to the shareholders of record as of the record date by mailing a check, payable to the registered shareholder, to the address of record or dividend mailing address. The Bank shall not be liable for any improper payment made in accordance with a Certificate or resolution described in the preceding paragraph. If the Bank shall not receive sufficient cash prior to the payment date to make payments of any cash dividend or distribution pursuant to subsections (i) and (ii) above to all shareholders of the Customer as of the record date, the Bank shall, upon notifying the Customer, withhold payment to all shareholders of the Customer as of the record date until sufficient cash is provided to the Bank.
3. It is understood that the Bank shall in no way be responsible for the determination of the rate or form of dividends or distributions due to the shareholders.
4. It is understood that the Bank shall file such appropriate information returns concerning the payment of dividends and distributions with the proper federal, state and local authorities as are required by law to be filed by the Customer but shall in no way be responsible for the collection or withholding of taxes due on such dividends or distributions due to shareholders, except and only to the extent required of it by applicable law.
ARTICLE VII
CONCERNING THE CUSTOMER
1. The Customer shall promptly deliver to the Bank written notice of any change in the Officers authorized to sign Share certificates, Certificates, notifications or requests, together with a specimen signature of each new Officer. In the event any Officer who shall have signed manually or whose facsimile signature shall have been affixed to blank Share certificates shall die, resign or be removed prior to issuance of such Share certificates, the Bank may issue such Share certificates as the Share certificates of the Customer notwithstanding such death, resignation or removal, and the Customer shall promptly deliver to the Bank such approvals, adoptions or ratifications as may be required by law.
2. Each copy of the Charter of the Customer and copies of all amendments thereto shall be certified by the Secretary of State (or other appropriate official) of the state of incorporation, and if such Charter and/or amendments are required by law also to be filed with a county or other officer or official body, a certificate of such filing shall be filed with a certified copy submitted to the Bank. Each copy of the By-Laws and copies of all amendments thereto, and copies of resolutions of the Board of Directors of the Customer, shall be certified by the Secretary or an Assistant Secretary of the Customer under the corporate seal.
3. It shall be the sole responsibility of the Customer to deliver to the Bank the Customer's currently effective Prospectus and, for purposes of this Agreement, the Bank shall not be deemed to have notice of any information contained in such Prospectus until it is actually received by the Bank.
ARTICLE VIII
CONCERNING THE BANK
1. The Bank shall not be liable and shall be fully protected in acting upon any oral instruction, writing or document reasonably believed by it to be genuine and to have been given, signed or made by the proper person or persons and shall not be held to have any notice of any change of authority of any person until receipt of written notice thereof from an Officer of the Customer. It shall also be protected in processing Share certificates which it reasonably believes to bear the proper manual or facsimile signatures of the duly authorized officers of the Customer and the proper countersignature of the Bank.
2. The Bank may establish such additional procedures, rules and regulations governing the transfer or registration of Share certificates as it may deem advisable and consistent with such rules and regulations generally adopted by bank transfer agents.
3. The Bank may keep such records as it deems advisable but not inconsistent with resolutions adopted by the Board of Directors of the Customer. The Bank may deliver to the Customer from time to time at its discretion, for safekeeping or disposition by the Customer in accordance with law, such records, papers, Share certificates which have been cancelled in transfer or exchange and other documents accumulated in the execution of its duties hereunder as the Bank may deem expedient, other than those which the Bank is itself required to maintain pursuant to applicable laws and regulations, and the Customer shall assume all responsibility for any failure thereafter to produce any record, paper, cancelled Share certificate or other document so returned, if and when required. The records maintained by the Bank pursuant to this paragraph which have not been previously delivered to the Customer pursuant to the foregoing provisions of this paragraph shall be considered to be the property of the Customer, shall be made available upon request for inspection by the Officers, employees and auditors of the Customer, and shall be delivered to the Customer upon request and in any event upon the date of termination of this Agreement, as specified in Article IX of this Agreement, in the form and manner kept by the Bank on such date of termination or such earlier date as may be requested by the Customer.
4. The Bank may employ agents or attorneys-in-fact at the reasonable expense of the Customer, and shall not be liable for any loss or expense arising out of, or in connection with, the actions or omissions to act of its agents or attorneys-in-fact, so long as the Bank acts in good faith and without negligence or willful misconduct in connection with the selection of such agents or attorneys-in-fact.
5. The Bank shall not be liable for any loss or damage, including reasonable attorney's fees, resulting from its actions or omissions to act or otherwise, except for any loss or damage arising out of its own negligence or willful misconduct.
6. The Customer shall indemnify and hold harmless the Bank from and against any and all claims (whether with or without basis in fact or law), costs, demands, expenses and liabilities, including reasonable attorney's fees, which the Bank may sustain or incur or which may be asserted against the Bank by reason of or as a result of any action taken or omitted to be taken by the Bank without its own negligence or willful misconduct in reliance upon (i) any provision of this agreement, (ii) the Prospectus, (iii) any instrument, order or Share certificate reasonably believed by it to be genuine and to be signed, countersigned or executed by any duly authorized Officer of the Customer, (iv) any Certificate or other instructions of an Officer, (v) any opinion of legal counsel for the Customer or the Bank, or (vi) any law, act, regulation or any interpretation of the same even though such law, act or regulation may thereafter have been altered, changed, amended or repealed.
7. Specifically, but not by way of limitation, the Customer shall indemnify and hold harmless the Bank from and against any and all claims (whether with or without basis in fact or law), costs, demands, expenses and liabilities, including reasonable attorney's fees, of any and every nature which the Bank may sustain or incur or which may be asserted against the Bank in connection with the genuineness of a Share certificate, the Bank's capacity and authorization to issue Shares and the form and amount of authorized Shares.
8. At any time the Bank may apply to an Officer of the Customer for written instructions with respect to any matter arising in connection with the Bank's duties and obligations under this Agreement, and the Bank shall not be liable for any action taken or omitted to be taken by the Bank in good faith in accordance with such instructions. Such application by the Bank for instructions from an Officer of the Customer may, at the option of the Bank, set forth in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and the Bank shall not be liable for any action taken or omitted to be taken in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, the Bank has received written instructions in response to such application specifying the action to be taken or omitted. The Bank may consult counsel to the Customer or its own counsel, at the expense of the Customer, and shall be fully protected with respect to anything done or omitted by it in good faith in accordance with the advice or opinion of such counsel.
9. When mail is used for delivery of non-negotiable Share certificates, the value of which does not exceed the limits of the Bank's Blanket Bond, the Bank shall send such non-negotiable Share certificates by first class mail, and such deliveries will be covered while in transit by the Bank's Blanket Bond. Non-negotiable Share certificates, the value of which exceed the limits of the Bank's Blanket Bond, will be sent by insured registered mail. Negotiable Share certificates will be sent by insured registered mail. The Bank shall advise the Customer of any Share certificates returned as undeliverable after being mailed as herein provided for.
10. The Bank may issue new Share certificates in place of Share certificates represented to have been lost, stolen or destroyed upon receiving instructions in writing from an Officer and indemnity satisfactory to the Bank. Such instructions from the Customer shall be in such form as approved by the Board of Directors of the Customer in accordance with applicable law or the By-Laws of the Customer governing such matters. If the Bank receives written notification from the owner of the lost, stolen or destroyed Share certificate within a reasonable time after he has notice of it, the Bank shall promptly notify the Customer and shall act pursuant to written instructions signed by an Officer. If the Customer receives such written notification from the owner of the lost, stolen or destroyed Share certificate within a reasonable time after he has notice of it, the Customer shall promptly notify the Bank and the Bank shall act pursuant to written instructions signed by an Officer. The Bank shall not be liable for any act done or omitted by it pursuant to the written instructions described herein. The Bank may issue new Share certificates in exchange for, and upon surrender of, mutilated Share certificates.
11. The Bank will issue and mail subscription warrants for Shares, Shares representing stock dividends, exchanges or splits, or act as conversion agent upon receiving written instructions from an Officer and such other documents as the Bank may deem necessary.
12. The Bank will supply shareholder lists to the Customer from time to time upon receiving a request therefor from an Officer of the Customer.
13. In case of any requests or demands for the inspection of the shareholder records of the Customer, the Bank will notify the Customer and endeavor to secure instructions from an officer as to such inspection. The Bank reserves the right, however, to exhibit the shareholder records to any person whenever it is advised by its counsel that there is a reasonable likelihood that the Bank will be held liable for the failure to exhibit the shareholder records to such person.
14. At the request of an Officer, the Bank will address and mail such appropriate notices to shareholders as the Customer may direct.
15. Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire into, and shall not be liable for:
(a) The legality of the issue, sale or transfer of any Shares, the sufficiency of the amount to be received in connection therewith, or the authority of the Customer to request such issuance, sale or transfer;
(b) The legality of the purchase of any Shares, the sufficiency of the amount to be paid in connection therewith, or the authority of the Customer to request such purchase;
(c) The legality of the declaration of any dividend by the Customer, or the legality of the issue of any Shares in payment of any stock dividend; or
(d) The legality of any recapitalization or readjustment of the Shares.
16. The Bank shall be entitled to receive and the Customer hereby agrees to pay to the Bank for its performance hereunder (i) out-of-pocket expenses (including reasonable attorney's fees and expenses) incurred in connection with this Agreement and its performance hereunder, and (ii) the compensation for services as set forth in Schedule I.
17. The Bank shall not be responsible for any money, whether or not represented by any check, draft or other instrument for the payment of money, received by it on behalf of the Customer, until the Bank actually receives and collects such funds.
18. The Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against the Bank in connection with this Agreement.
ARTICLE IX
TERMINATION
Either of the parties hereto may terminate this Agreement by giving to the other party a notice in writing specifying the date of such termination, which shall be not less than 60 days after the date of receipt of such notice. In the event such notice is given by the Customer, it shall be accompanied by a copy of a resolution of the Board of Directors of the Customer, certified by the Secretary electing to terminate this Agreement and designating a successor transfer agent or transfer agents. In the event such notice is given by the Bank, the Customer shall, on or before the termination date, deliver to the Bank a copy of a resolution of its Board of Directors certified by the Secretary designating a successor transfer agent or transfer agents. In the absence of such designation by the Customer, the Bank may designate a successor transfer agent. If the Customer fails to designate a successor transfer agent and if the Bank is unable to find a successor transfer agent, the Customer shall, upon the date specified in the notice of termination of this Agreement and delivery of the records maintained hereunder, be deemed to be its own transfer agent and the Bank shall thereafter be relieved of all duties and responsibilities hereunder. Upon termination hereof, the Customer shall pay to the Bank such compensation as may be due to the Bank as of the date of such termination, and shall reimburse the Bank for any disbursements and expenses made or incurred by the Bank and payable or reimbursable hereunder.
ARTICLE X
MISCELLANEOUS
1. The Customer agrees that prior to effecting any change in the Prospectus which would increase or alter the duties and obligations of the Bank hereunder, it shall advise the Bank of such proposed change at least ten business days prior to the intended date of the same, and shall proceed with such change only if it shall have received the written consent of the Bank thereto.
2. The indemnities contained herein shall be continuing obligations of the Customer, its successors and assigns, notwithstanding the termination of this Agreement.
3. Any notice or other instrument in writing, authorized or required by this Agreement to be given to the Customer shall be sufficiently given if addressed to the Customer and mailed or delivered to it at 800 Scudders Mill Road, Plainsboro, NJ 08536 or at such place as the Customer may from time to time designate in writing.
4. Any notice or other instrument in writing, authorized or required by this Agreement to be given to the Bank shall be sufficiently given if addressed to the Bank and mailed or delivered to it at its office at 101 Barclay Street (22W), New York, New York 10286 or at such other place as the Bank may from time to time designate in writing.
5. This Agreement may not be amended or modified in any manner except by a written agreement duly authorized and executed by both parties. Any duly authorized Officer may amend any Certificate naming Officers authorized to execute and deliver Certificates, instructions, notices or other instruments, and the Secretary or any Assistant Secretary may amend any Certificate listing the shares of capital stock of the Customer for which the Bank performs Services hereunder.
6. This Agreement shall extend to and shall be binding upon the parties hereto and their respective successors and assigns; provided, however, that this Agreement shall not be assignable by either party without the prior written consent of the other party.
7. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
8. This Agreement may be executed in any number of counterparts each of which shall be deemed to be an original; but such counterparts, together, shall constitute only one instrument.
9. The provisions of this Agreement are intended to benefit only the Bank and the Customer, and no rights shall be granted to any other person, by virtue of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective corporate officer, thereunto duly authorized and their respective corporate seals to be hereunto affixed, as of the day and year first above written.
Attest: MUNIASSETS FUND, INC. /s/ Mark B. Goldfus BY: /s/ Gerald M. Richard ----------------------------- ------------------------------ Title: GERALD M. RICHARD, TREASURER Attest: THE BANK OF NEW YORK /s/ Illegible BY: /s/ Illegible ----------------------------- ------------------------------ Title: Vice President |
Exhibit 14(a) |
INDEPENDENT AUDITORS CONSENT |
We consent to the use in Pre-Effective Amendment No. 1 to Registration Statement No. 333-65446 on Form N-14 of MuniAssets Fund, Inc. (the Fund) of our report dated June 27, 2001 appearing in the May 31, 2001 Annual Report of the Fund, and to the references to us under the captions COMPARISON OF THE FUNDSFinancial Highlights MuniAssets and EXPERTS appearing in the Joint Proxy Statement and Prospectus, which is a part of such Registration Statement. |
/s/ Deloitte & Touche LLP |
New York, New York
September 7, 2001 |
Exhibit 14(b) |
INDEPENDENT AUDITORS CONSENT |
We consent to the use in Pre-Effective Amendment No. 1 to Registration Statement No. 333-65446 on Form N-14 of MuniAssets Fund, Inc. of our report dated October 5, 2000 for Merrill Lynch High Income Municipal Bond Fund, Inc. (the Fund) appearing in the August 31, 2000 Annual Report of the Fund, and to the references to us under the captions COMPARISON OF THE FUNDSFinancial Highlights High Income Municipal and EXPERTS appearing in the Joint Proxy Statement and Prospectus, which is a part of such Registration Statement. |
/s/ Deloitte & Touche LLP |
New York, New York
September 7, 2001 |